Citation Nr: 21076709 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-18 436 DATE: December 27, 2021 ORDER Entitlement to service connection for ischemic heart disease, to include as secondary to exposure to herbicide agent, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACTS 1. The Veteran does not have a current diagnosis of ischemic heart disease. 2. Resolving reasonable doubt in the Veteran's favor and affording him the benefit of the doubt, he has diabetic neuropathy of the right lower extremity that is secondary to his service-connected diabetes mellitus, type II. 3. Resolving reasonable doubt in the Veteran's favor and affording him the benefit of the doubt, he has diabetic neuropathy of the left lower extremity that is secondary to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral neuropathy of the right lower extremity due to service-connected diabetes mellitus, type II have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for peripheral neuropathy of the left lower extremity due to service-connected diabetes mellitus, type II have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2017 rating decision. The Veteran filed a notice of disagreement (NOD) in March 2017, which resulted in a statement of the case (SOC) also issued in March 2017. The Veteran subsequently filed a substantive appeal in March 2017, where he elected to have videoconference hearing at regional VA office. In December 2020, the Board sent the Veteran a letter informing him that many VA Regional Offices are closed to the public due to COVID-19 and that he is scheduled for virtual tele-hearing in March 2021. The Veteran was asked to accept this hearing slot by February 2021. However, he did not respond. Subsequently in April 2021, the Board sent the Veteran another letter informing him that he can have a virtual tele-hearing on July 2, 2021. The Veteran did not appear for the scheduled hearing. To date, the Veteran has not requested that his hearing be rescheduled or provided good cause for his failure to show. Therefore, the Veteran's request for a hearing is deemed to be withdrawn. 38 C.F.R. § 20.702 (d). Notably, in an Appellate Brief, submitted in October 2021, the Veteran's representative asserted that service connection for the Veteran's essential hypertension is warranted. However, there was no claim for service connection for hypertension filed or adjudicated by the agency of original jurisdiction (AOJ). Thus, there is no issue regarding hypertension that is currently on appeal. The Veteran is encouraged to file separate claim, if he believes that he has hypertension that is related to his military service. Service Connection 1. Ischemic heart disease The Veteran contends that service connection for ischemic heart disease is warranted. As an initial matter, the Board notes that VA has conceded the Veteran was exposed to Agent Orange during his service in Vietnam. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability "refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). Notably, for veterans, such as this one, who are presumed to have been exposed to herbicide agents, the in-service incurrence and nexus elements are presumptively established for certain diseases, including Ischemic Heart Disease (IHD), listed under 38 C.F.R. § 3.309 (e). In this case, however, the competent evidence of record does not demonstrate a current diagnosis of an IHD. VA treatment records reflect that the Veteran sought treatment after experiencing chest pain, and a stress test was conducted in August 2016, which came back "negative for any signs of heart blockage/heart attack." In an August 2016 follow-up letter, a VA physician wrote "I do not think your symptoms are related to your heart. Part of the test suggests your heart may pump a little less blood than expected. We could follow this up with an ultrasound of the heart." Subsequently, the Veteran was given an echocardiogram in October 2016, which found moderate concentric left ventricular hypertrophy, mild aortic insufficiency, and mildly dilated inferior vena cava. A different VA physician reviewed the results and concluded that the Veteran does not have a heart failure, and the findings are due to the Veteran's blood pressure (notably the Veteran has hypertension, addressed in the Remand portion below). See November 2016 Follow Up Result Letter. In other words, the October 2016 echocardiogram results were not found to be consistent with a heart condition. Similarly, the Veteran underwent a VA examination in December 2016, where the examiner, after reviewing the Veteran's medical records, concluded that he does not have diagnosis of heart condition. In general, the VA medical records or VA examination do not show any treatment or diagnosis for IHD. The Board has considered the Veteran's lay statement that he has heart condition, specifically IHD, that is related to his exposure to herbicide agents. However, the issue of whether he has heart condition is medically complex and requires specialized knowledge and experience, as well as specialized testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no indication that the Veteran has the necessary medical training to properly diagnose himself with heart condition. Thus, the Veteran's lay statement is not competent evidence of a current disability, no matter how sincere, and the Board assigns higher probative value to the VA treatment records and the December 2016 VA examination that found no diagnosis of IHD. In sum, absent competent evidence showing that the Veteran has a current disability, service connection cannot be granted. Therefore, the Board need not discuss the in-service incurrence and nexus elements of a service connection claim. Brammer, 3 Vet. App. at 225. The evidence weighs against a finding of a diagnosis of IHD at any time in the appellate period. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. The claim is denied. 2. Right and left lower extremity peripheral neuropathy The Veteran contends that service connection for diabetic neuropathy of the bilateral lower extremity is warranted either on direct or secondary basis. Secondary service connection is warranted for a current disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). In this case, the Veteran has a current diagnosis of bilateral lower extremity peripheral neuropathy. See March 2018 VA examination. In addition, he has diabetes mellitus, type II, which is service connected. Reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the evidence is at least in equipoise as to whether the Veteran's bilateral lower extremity diabetic neuropathy is secondary to his service-connected diabetes, mellitus, type II. To that end, in a March 2018 VA medical opinion, a VA examiner concluded that it is less likely than not that the Veteran's bilateral lower extremity peripheral neuropathy is proximately due to or the result of his diabetes because he had "idiopathic [peripheral neuropathy] diagnosed in 2003." On the other hand, a March 2017 VA examination report reflects that the Veteran has diabetic peripheral neuropathy as a complication of his diabetes mellitus, type II. In a March 2018 VA medical opinion, the examiner wrote that the Veteran "has decreased symmetric loss of sensation to the mid-foot in a stocking glove distribution. This is at least as likely as not chronically aggravated by [service-connected] diabetes." Moreover, in an April 2021 VA medical opinion, a VA examiner opined that the Veteran has bilateral lower extremity neuropathy secondary to diabetes. The examiner further explained that diabetic peripheral neuropathy is a "medically accepted and frequent complication of [diabetes mellitus, type II]." When viewed holistically, the medical evidence of record, at a minimum, gives rise to a reasonable doubt as to whether the Veteran's bilateral lower extremity neuropathy is secondary to diabetes. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, resolving reasonable doubt in his favor, the Board concludes that service connection for peripheral neuropathy of the right and left lower extremities is warranted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). REASONS FOR REMAND 1. Right and left upper extremity peripheral neuropathy The Veteran contends that service connection for peripheral neuropathy of the bilateral upper extremities is warranted. The Veteran underwent VA examinations in January 2017 and March 2018. Both examinations were conducted by the same examiner, who concluded that the Veteran does not have a diagnosis of diabetic peripheral neuropathy of the bilateral upper extremities. The examiner's conclusion conflicts with the examination reports that show that the Veteran has symptoms attributable to diabetic peripheral neuropathy. Specifically, during the January 2017 VA examination, the examiner indicated that the Veteran had symptoms, such as intermittent pain, paresthesias and/or dysesthesia, as well as numbness in the right and left upper extremity. Similarly, in the March 2018 examination report, the examiner indicated that the Veteran had paresthesias and/or dysesthesias, and numbness in both upper extremities, as well as moderate and intermittent pain in the left upper extremity. Notwithstanding, the examiner concluded that the Veteran does not have a diagnosis of diabetic peripheral neuropathy of the bilateral upper extremity. The examiner's rationale relies on the finding that the "Veteran does not have a stocking glove distribution of his symptoms as is found with diabetic peripheral neuropathy." See January 2017 examination report. The examiner provided additional opinion after the March 2018 examination and wrote "no diagnosis of upper extremity [diabetic peripheral neuropathy]. The Veteran has symptoms which are consistent with radicular pain and left sided carpal tunnel. He does not have an exam pattern of [diabetic peripheral neuropathy] with bilaterally symmetric loss of sensation in a stocking glove distribution." The examiner references the fact that the Veteran had idiopathic peripheral neuropathy when providing this opinion. Notably, that diagnosis was related to the Veteran's lower extremities. In summary, the VA examination reports and accompanying opinions are internally inconsistent to the extent the examiner appears to be saying that the Veteran has symptoms attributable to diabetic peripheral neuropathy, while also stating that the Veteran's symptoms are not consistent with a diagnosis of diabetic peripheral neuropathy. Notably, the record has VA diabetes examination from March 2017 that found that the Veteran has diabetic peripheral neuropathy as complication of his diabetes without specifying the extremities being affected. Thus, a medical opinion that reconciles the conflicting findings as to whether the Veteran has bilateral upper extremity peripheral neuropathy secondary to his diabetes (diabetic peripheral neuropathy) is necessary before the claims can be adjudicated. 2. Hypertension The Veteran's VA treatment records reflect a diagnosis of hypertension. See VA Treatment Records. Further, in the October 2021 Appellate Brief, the Veteran's representative has raised the argument that the diagnosed hypertension is secondary to his service connected diabetes mellitus. However, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no VA examiner has opined whether it is due to or aggravated by his service connected disaiblities. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the Veteran's claimed bilateral upper extremity peripheral neuropathy. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has peripheral neuropathy of the right and/or left upper extremities? The examiner should consider and comment on the Veteran's symptoms noted during the January 2017 and March 2018 VA examinations. (b.) If the Veteran has right and/or left upper extremity peripheral neuropathy, is it at least as likely as not (a 50 percent or greater probability) that his diabetes mellitus, type II, caused such condition(s)? AND (c.) Has the Veteran's diabetes mellitus, type II, at least as likely as not aggravated (worsened beyond its natural progression) his right and/or left upper extremity peripheral neuropathy? Separate and distinct rationales must be provided for causation and aggravation. The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 2. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the Veteran's claimed hypertension. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has hypertension? (b.) If the Veteran has hypertension, is it at least as likely as not (a 50 percent or greater probability) that his diabetes mellitus, type II, caused such condition(s)? AND (c.) Has the Veteran's diabetes mellitus, type II, at least as likely as not aggravated (worsened beyond its natural progression) his hypertension? Separate and distinct rationales must be provided for causation and aggravation. The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.