Citation Nr: 21005299 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-19 624 DATE: February 1, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for a kidney disorder, to include failure, claimed as due to diabetes mellitus or herbicide agent exposure, is remanded. Entitlement to service connection for a joint disorder, claimed as pain in the joints due to diabetes mellitus, the claimed kidney disorder, or herbicide agent exposure is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service event, injury, or disease, and is not secondary to the service-connected diabetes mellitus. 2. The preponderance of the evidence is against finding that erectile dysfunction began during active service, or is otherwise related to an in-service event, injury, or disease, and is not secondary to the service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from May 1974 to August 1976. The service connection claims are on appeal from an October 2009 rating decision. The TDIU claim is on appeal from an April 2015 rating decision. The Veteran was scheduled for a videoconference Board hearing in June 2017. In May 2017, the Veteran, through his attorney, withdrew his request for a hearing. In February 2018, the Board remanded for further development, to include obtaining VA medical records (that have been obtained) and VA examinations on the question of aggravation (obtained in December 2018). The Board notes that the Veteran previously received VA examinations in February 2016, and that the entry date noted for those VA examinations was in March 2016. The Board will refer to such VA examinations herein as from February 2016. The issue of entitlement to service connection for tongue cancer was separately appealed and is not currently before the Board as the Veteran is awaiting his requested Board hearing. Service Connection 1. Entitlement to service connection for hypertension. The Veteran contends that he has hypertension due to conceded herbicide agent exposure or was caused or aggravated by service-connected diabetes mellitus. In a December 2020 statement, his attorney claimed that a study found enough evidence exists to link hypertension to herbicide agent exposure and cited an internet article that diabetes mellitus may cause hypertension. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The questions for the Board are 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; or is secondary to a service-connected disability. The Veteran has a current diagnosis of hypertension, and herbicide agent exposure has been conceded (in prior VA decisions). The Board finds that hypertension is not listed as one of the diseases associated with herbicide agent exposure. 38 C.F.R. § 3.309. Furthermore, the preponderance of the evidence weighs against finding that the Veteran’s hypertension is due to service, to include herbicide agent exposure, or was caused or aggravated by the service-connected diabetes mellitus. Service treatment records do not document complaints of, or treatment for, hypertension. The Board generally notes that when rating hypertension, hypertension and isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of Diagnostic Code 7101, hypertension means that the diastolic blood pressure is predominately 90 mm or greater. Isolated systolic hypertension means that the systolic blood pressure is predominately 160 mm or greater, with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. Notably, the June 1976 separation examination did not include a blood pressure reading indicative of hypertension and the Veteran denied having high blood pressure at that time. A post-service May 1978 reserve evaluation also did not indicate a reading indicative of hypertension. Per his December 2008 service connection claim, the Veteran reported that his hypertension developed around 1996. In an April 2003 VA medical record, the Veteran stated that he had a history of hypertension and recently started taking medication for it. In a January 2008 private medical record, Dr. M.D. reported that the Veteran reported a history of hypertension for 5 years. Thus, there is no probative evidence showing the Veteran had hypertension in service or within a year of his August 1976 separation from service. A February 2016 VA examiner noted a diagnosis of hypertension, which the Veteran reported had been diagnosed approximately 10 to 12 years prior. The examiner noted that his hypertension predated his service-connected diabetes mellitus and is therefore not likely a complication of diabetes mellitus. The condition had followed the natural course. In the kidney VA examination at that time, the examiner also found that the Veteran did not have hypertension caused by any kidney condition. A December 2018 VA examiner noted that the Veteran was not currently on any anti-hypertensive medication due to his weight loss of 70 pounds. The Board notes that his blood pressure readings taken at that time were not indicative of hypertension. The examiner found that hypertension was less likely as not due to herbicide agent exposure, explaining that clinical research was not agreed on it being a risk factor. Furthermore, there was no clinical evidence of an increase of severity due to diabetes mellitus. The VA examiner for the kidneys at that time similarly found that the Veteran did not have hypertension due to renal dysfunction or caused by kidney condition. As noted above, the Veteran’s hypertension pre-existed his diabetes mellitus by several years. As such, diabetes mellitus cannot be the cause of his hypertension. The VA examiner also explained that the medical research was not agreed as to herbicide agent exposure being a risk factor for hypertension. Indeed, even the article cited by the Veteran’s attorney did not specifically indicate causation. Furthermore, the severity of his hypertension has decreased in severity since that time, as he is no longer on medication for it though had been previously. His blood pressure readings at the time of the most recent VA examination were normal without the use of medication. The Board notes that the Veteran would be competent to report having experienced symptoms of the claimed disorder, if he had done so, but he is not competent to provide a diagnosis in this case or determine that the disorder developed due to herbicide agent exposure in service. The etiology issue is medically complex, as it requires knowledge of the interaction between multiple organ systems with chemical exposure. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Ultimately, the most probative evidence of record regarding nexus is the negative opinion delineated above. The Veteran’s attorney has provided medical treatise information, citing to an article noting that diabetes mellitus may cause hypertension. Such treatise evidence which may be regarded as competent evidence where “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Wallin v. West, 11 Vet. App. 509, 513 (1998). However, the Court has held that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish the nexus element. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, the Board finds the medical text does not apply to the current case as it does not address causation when hypertension pre-existed the diabetes mellitus by several years. Furthermore, the study cited by the Veteran’s attorney in the claim that herbicide agent exposure caused hypertension, the Board notes that such study did not find causation. As explained by the December 2018 VA examiner, clinical research was not agreed as to herbicide agent exposure being a risk factor for hypertension. As the preponderance of the evidence is against each claim, the benefit of the doubt rule does not apply. Service connection for hypertension is not warranted. 2. Entitlement to service connection for erectile dysfunction, claimed as due to service-connected diabetes mellitus or medications for hypertension and diabetes mellitus. In a December 2020 statement, his attorney cited an internet article to support finding that diabetes mellitus causes erectile dysfunction or that medications that he takes for hypertension and diabetes mellitus are the cause of erectile dysfunction. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board initially notes that as the Veteran is not service connected for hypertension, service connection secondary to that disorder, to include the use of medications for it, is not possible. Additionally, the Veteran has not claimed that his erectile dysfunction started during service. Service treatment records are silent as to any complaints of, or treatment for, erectile dysfunction, including his post-service reserve evaluation. The Board further notes that the Veteran’s erectile dysfunction pre-existed his diabetes mellitus by several years. In his December 2008 claim, he reported it began in 1996. VA medical records from the early-2000s, such as a December 2002 history and physical noted complaint of erectile dysfunction. In contrast, in a March 2016 statement, the Veteran’s attorney claimed that diabetes mellitus began in March 2011 (which is prior to when the erectile dysfunction is noted in the medical evidence of record). Even if the Board were to use the March 2011 date for diabetes mellitus, the Veteran’s erectile dysfunction would have pre-existed diabetes mellitus by several years. In a February 2016 VA examination, the VA examiner noted that the Veteran reported that his erectile dysfunction was diagnosed in the late-1990s. He had taken Viagra for several years with poor relief and denied surgeries, injuries, or deformities of the genital area. The VA examiner found that erectile dysfunction was not at least as likely as not attributable to diabetes mellitus. The examiner explained that erectile dysfunction predated diabetes mellitus by years. The Board notes that although the December 2018 VA examiner found that erectile dysfunction was attributable to diabetes mellitus, it provided no explanation as to how it reached that conclusion and does not appear to take into account that it dysfunction pre-existed diabetes mellitus by years (as noted by the February 2016 VA examiner). Indeed, that opinion was further confusing on that question as it also found in a different part of the examination report that it was less likely than not that erectile dysfunction was the result of the Veteran’s service-connected diabetes mellitus. As such, to the extent that opinion may be argued to be supporting the claim, the Board finds that it does not. In addition to the conflicting opinions, the positive part of the opinion was provided without an explanation and was also based on inaccurate facts. The Board thus finds that the February 2016 VA examination is more probative than the December 2018 VA examination on the question of whether diabetes mellitus caused erectile dysfunction. The Board thus turns to the question of whether erectile dysfunction was aggravated by diabetes mellitus. The December 2018 VA examiner found that it was not aggravated by diabetes mellitus. The examiner explained that erectile dysfunction was less likely than not aggravated by diabetes mellitus. The examiner explained that there was no clinical evidence of an increase in severity of erectile dysfunction due to diabetes mellitus. Rather, his erectile dysfunction has been stable for many years with no increase or decrease in function. The Veteran was still using Viagra, though he was not happy with the effectiveness. Although the Veteran is competent to report having experienced erectile dysfunction, he is not competent to provide an etiology opinion, such as that it developed due to diabetes mellitus. The etiology issue is medically complex, as it requires knowledge of the interaction between multiple organ systems with chemical exposure. Jandreau, supra. Ultimately, the most probative evidence of record regarding nexus is the probative negative opinions delineated above. The Veteran’s attorney has cited to an article noting that erectile dysfunction is a common problem for men who have diabetes. The Board finds the medical text to not apply to this case, as it does not address the question of erectile dysfunction that pre-existed the diabetes mellitus by several years. Therefore, it is not probative. As to the Veteran’s claim that the medication for diabetes mellitus aggravated his erectile dysfunction, the Board notes that as the December 2018 VA examiner found no increase in severity of the erectile dysfunction since the Veteran has had diabetes mellitus. Therefore, there is also no indication of an increase in severity due to the medications to treat diabetes mellitus. As a matter of common knowledge, a person would only be prescribed medications to treat a disorder only after that person has been diagnosed with it. The Board thus finds that sufficient evidence is of record to decide this claim and a new VA examination is not necessary. The preponderance of the most probative evidence of record is against each claim. As such, the benefit of the doubt rule does not apply. Service connection for erectile dysfunction is denied. REASONS FOR REMAND The claims for service connection for (1) a kidney disorder, to include kidney failure (claimed as due to diabetes mellitus or herbicide agent exposure), (2) pain in joints (claimed as due to diabetes mellitus, the claimed kidney disorder, or herbicide agent exposure), as well as, the claim for (3) entitlement to a TDIU are remanded. In February 2018, the Board remanded the service connection claims for new VA medical opinions, which were obtained in December 2018. The Board finds that the new VA examinations did not adequately address the Veteran’s claims. The December 2018 VA examination for a kidney disorder did not adequately address the question of whether he has a kidney disorder caused by herbicide agent exposure as it was confusingly contradictory. Furthermore, the new December 2018 VA examination did not address the Veteran’s claim that his joint pain was aggravated by the service-connected diabetes mellitus (or the claimed kidney disorder). Rather, the examiner simply found that the Veteran did not have a current diagnosis associated with the VA examination for non-degenerative arthritis. The VA examiner further noted that the Veteran was still undergoing tests. The Board notes that the prior February 2016 VA examiner and VA medical records indicated diagnoses of degenerative arthritis for various joints and that the question of aggravation of such disorder(s) has still not yet been addressed. The issue of entitlement to a TDIU is inextricably intertwined with the issues noted above. As this matter is being remanded, any unassociated VA medical records should be obtained. The matters are REMANDED for the following action: 1. Any unassociated VA medical records should be obtained. 2. After all records development has been accomplished, obtain a new VA medical opinion by an appropriate clinician regarding the claimed kidney disability. The entire claims file should be made available to the individual designated to provide an opinion. A new VA examination should only be obtained if deemed necessary by the VA medical opinion provider. Following a review of the claims file, the VA medical opinion provider should offer an opinion on the following: (i) Does the Veteran currently have any kidney disorder(s)? If so, please note the diagnosed disorder(s). (ii) For EACH currently diagnosed kidney disorder, is it at least as likely as not due to herbicide agent exposure in service? (iii) For EACH currently diagnosed kidney disorder, is it at least as likely as not such was caused OR aggravated (i.e., increased in severity beyond the natural progression) by the service-connected diabetes mellitus? The examiner should provide an opinion as to the questions of BOTH causation AND aggravation. EACH opinion offered should be accompanied by an explanation. The VA medical opinion provider should consider all pertinent evidence of record. The Board notes that the February 2018 Board remand contains a detailed rendering of most of the Veteran’s pertinent medical history, but it is up to the VA examiner to consider all the evidence of record, to include the November 2008 opinion of Dr. E.H. (received in December 2008). 3. After all records development has been accomplished, obtain a joints VA medical opinion by an appropriate clinician. The entire claims file should be made available to the individual designated to provide an opinion. A new VA examination should only be obtained if deemed necessary by the VA medical opinion provider. Following a review of the claims file, the VA medical opinion provider should offer an opinion on the following: (i) Does the Veteran currently have any joint disorder(s)? If so, please note the diagnosed disorder(s). (ii) For EACH currently diagnosed joint disorder, is it at least as likely as not such was caused OR aggravated (i.e., increased in severity beyond the natural progression) by the service-connected diabetes mellitus? The examiner should provide an opinion as to the questions of BOTH causation AND aggravation. EACH opinion offered should be accompanied by an explanation. The VA medical opinion provider should consider all pertinent evidence of record. The Board notes that the February 2018 Board remand contains a detailed rendering of most of the Veteran’s pertinent medical history, but it is up to the VA examiner to consider all the evidence of record, to include the medical articles submitted by the Veteran in March 2016 on arthritis and diabetes. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.