Citation Nr: A21020356 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 210806-186073 DATE: December 21, 2021 ORDER Service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities (claimed as joint pains), as secondary to service-connected diabetes mellitus, type II, is granted. Service connection for hypertension, to include as due to herbicide agents exposure, is granted. FINDINGS OF FACT 1. The Veteran's diabetic peripheral neuropathy of the bilateral upper and lower extremities is associated with his service-connected diabetes mellitus, type II. 2. The Veteran's hypertension is reasonably shown to be proximately due to his in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities, as secondary to service-connected diabetes mellitus, type II, are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to July 1970, and from November 1970 to November 1971. He died in August 2016. The Appellant is the Veteran's surviving spouse. In an April 2017 notice letter, the Appellant was determined to meet the basic eligibility for substitution as the claimant for all claims that the Veteran had pending before VA at the time of his death. In August 2010, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. These matters were previously remanded for additional development by the Board of Veterans' Appeals in February 2011, September 2014, November 2019, and April 2021. In August 2021, the Veteran withdrew his appeal from the legacy appeals process and opted them into the Appeals Modernization Act (AMA) by filing a timely VA Form 10182, Notice of Disagreement (NOD), to the July 2021 Supplemental Statement of the Case (SSOC). In the August 2021 VA Form 10182, the Appellant selected the evidence submission review lane. Under this lane, the Board considers claims based on the evidence of record at the time of the prior decision and evidence received within 90 days following the receipt of the NOD. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities. The Appellant seeks service connection for joint pain, which she claims is due to the Veteran's service-connected diabetes mellitus. The Board notes that, although the Veteran filed a claim for service connection for joint pain, the evidence of record indicates that the Veteran's symptoms are related to diabetic peripheral neuropathy. Accordingly, as indicated above, the Board has expanded his claim to include entitlement to service connection for joint pain to include diabetic peripheral neuropathy. Clemons v. Shinseki, 23 Vet. App. 1 (2009). On VA examination in November 2015, it was noted that the Veteran had diabetic peripheral neuropathy of the bilateral upper and lower extremities, which was diagnosed in 1998. See VA Examination received December 2015. Moreover, in June 2021, a VA medical opinion was obtained to address the etiology of the Veteran's joint pain. Following a review of the record, the examiner opined that the Veteran's joint pain was more likely than not caused by his diabetic peripheral neuropathy. See June 2021 VA Medical Opinion. Given the fact that the Veteran is service-connected for diabetes mellitus (see December 2021 Board decision), and its relationship between his bilateral upper and lower extremity diabetic peripheral neuropathy, service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities is warranted. Accordingly, service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for hypertension. The Appellant seeks service connection for hypertension, which she contends is due to the Veteran's military service, to include as due to herbicide agent exposure, or alternatively, as due to service-connected diabetes mellitus. The record shows that prior to the Veteran's death, he had a diagnosis of hypertension. Such is sufficient to establish the first element for establishing service connection. As previously determined by the Agency of Original Jurisdiction (AOJ), the Veteran has confirmed service in the Republic of Vietnam and, therefore, exposure to herbicide agents is presumed. See July 2021 Rating Decision; August 2021 Herbicide Exposure Verification Memorandum. Although hypertension is not listed among the diseases enumerated under 38 C.F.R. § 3.309(e), and the herbicide agents presumptive provisions of 38 U.S.C. § 1116 do not apply to that disability, the Board must, nevertheless, analyze whether the evidence establishes direct service connection as due to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In May 2011, the Veteran underwent a VA examination to assess the etiology of his hypertension. During the examination, the Veteran reported that he was diagnosed with hypertension between 1993 and 1995. The examiner confirmed the diagnosis of hypertension and indicated that the Veteran also had a history of stroke, nosebleeds, and headaches related to his hypertension. No opinion regarding the etiology of the Veteran's hypertension was provided, however, as the examiner indicated that the Veteran's claims file was not available and, an opinion could not be rendered for this reason. In August 2011, a VA medical opinion was obtained to address the etiology of the Veteran's hypertension. Following a review of the record, the examiner opined that the Veteran's hypertension was less likely than not caused by or a result of the Veteran's military service. In reaching this determination, the examiner indicated there was no documentation of CVA or hypertension while in service. Moreover, she noted documentation of CVA as early as 1995, and that hypertension was diagnosed several years post military discharge in 2007. Lastly, she remarked that there was no or not sufficient data in the Veteran's file to support the claim for hypertension. In October 2015, the Veteran underwent a VA examination to assess the etiology of his hypertension. Following a review of the record and a physical examination of the Veteran, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the Veteran's active duty service, to include his 1969 motor vehicle accident. The examiner explained that a review of the Veteran's STRs did not reveal a diagnosis of hypertension. Moreover, she noted that the record did not contain documentation showing a diagnosis of hypertension within one year of the Veteran's separation from the military. The examiner further opined that the Veteran's hypertension was not due to the 1969 motor vehicle accident. In this regard, she noted that the Veteran sustained a mild concussion/ traumatic brain injury associated with his 1969 motor vehicle accident, but maintained that he did not experience post head injury autonomic complications that would have resulted in hypertension acutely. The examiner further explained that this syndrome was characterized by hypertension, fever, tachycardia, tachypnea, pupillary dilation, and extensor posturing. In November 2015, the Veteran underwent a VA examination to assess his diabetes mellitus. When evaluating the complications of the Veteran's diabetes mellitus, the examiner indicated that the Veteran had a diagnosis of hypertension and indicated that the condition was at least as likely as not due to the Veteran's diabetes mellitus. See VA examination received December 2015. In May 2020, a VA medical opinion was obtained to address whether the Veteran's hypertension was etiologically related to his military service, to include as secondary to his service-connected diabetes mellitus, or as due to herbicide agents exposure. Following a review of the record, the examiner opined that the Veteran's hypertension was less likely than not related to service; however, in April 2021, the Board found that the May 2020 VA examiner did not address whether the Veteran's hypertension was due to or aggravated by the Veteran's diabetes mellitus, and remanded the matter for additional development. See April 2021 Board Decision. In October 2020, the Appellant's representative submitted a private medical opinion addressing the etiology of the Veteran's hypertension. The October 2020 private examiner opined that the Veteran's hypertension was more likely than not due to the Veteran's exposure to herbicide agents while in service. To support her opinion, the examiner included an excerpt from the National Academy of Sciences', "Veteran's and Agent Orange: Update 11 (2018)", which states that the information assembled constitutes sufficient evidence of an association between exposure to herbicide agents and hypertension. See Private Treatment Record received October 2020. In June 2021, a VA medical opinion was obtained to address whether the Veteran's hypertension was related to exposure to herbicide agents or as due to a service-connected condition. Following a review of the record, the examiner opined that the Veteran's hypertension was at least as likely as not related to the Veteran's exposure to herbicide agents. To support this position, the examiner cited a study, which found higher rates of hypertension among members of the Army Chemical Corps who handled Agent Orange during the war compared to those who did not. The study also found that Corps members who served in Vietnam, but did not spray chemicals, also had a higher rate of hypertension than their peers who served outside of Vietnam. The examiner also opined that the Veteran's hypertension was at least as likely as not caused or aggravated by the Veteran's service-connected diabetes mellitus. In his rationale, the examiner explained that diabetes mellitus has been shown to increase the risk for hypertension, and would be at least as likely as not the cause of the Veteran's hypertension. Additionally, the examiner opined that, due to the increased risk, the Veteran's diabetes mellitus would aggravate the Veteran's hypertension beyond its natural progression. See June 2021 VA Medical Opinion. In light of the evidence above, and after affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension was caused by his active duty military service, to include as secondary to herbicide agent exposure, or as due to his service-connected diabetes mellitus. In reaching this determination, the Board notes that the November 2015 and June 2021 VA examiners opined that the Veteran's hypertension was more likely than not etiologically related to his service-connected diabetes mellitus. Moreover, the October 2020 private examiner and the June 2021 VA examiner opined that the Veteran's hypertension was more likely than not due to his exposure to herbicide agents. To support their opinions, both cited medical treatise evidence, which indicated an association between hypertension and herbicide agents exposure. There are no medical opinions to the contrary. Based on the foregoing, the Board finds that service connection for hypertension, to include as secondary to service-connected diabetes mellitus, or as due to exposure to herbicide agents, is warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.