Citation Nr: 21010505 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-08 808 DATE: February 25, 2021 ORDER Service connection for left lower extremity diabetic peripheral neuropathy (DPN) is granted. Service connection for right lower extremity DPN is granted. REMANDED Service connection for hypertension is remanded. FINDING OF FACT The evidence is in equipoise regarding whether the Veteran’s has a diagnosis of bilateral DPN. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremity DPN have been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to December 1971. In January 2019, the Veteran testified before the undersigned Veterans’ Law Judge. A copy of the transcript is associated with the record. In May 2019, the Board denied service connection, in part, for the Veteran’s hypertension and his bilateral lower extremity DPN. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued an Order granting a Joint Motion of Partial Remand (JMR) which vacated the part of the Board’s decision which pertained to the Veteran’s claims for service connection for hypertension and bilateral lower extremity DPN and returned those issues to the Board for further appellate review. The Board’s decision regarding the Veteran’s claim for diabetic retinopathy was undisturbed by the Court and that issue is not before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Bilateral Lower Extremity DPN Secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. In the current matter, though the Veteran’s VA examinations did not diagnose DPN, the Veteran’s VA medical center have noted a diagnosis of DPN and have treated the Veteran for such a condition. See September 2008, March 2012, September 2016, December 2016, and September 2017 VA medical center records. As the Veteran is service connected for his diabetes mellitus, type II, service connection for his bilateral lower extremity DPN is warranted. As stated above, the Board does note that prior VA examinations did not find that the Veteran had a diagnosis of DPN. However, the Board finds that considering the VA medical center records, the evidence as to the diagnosis of Veteran’s DPN is in equipoise and in such instances, the benefit of the doubt is afforded to the Veteran. Although a remand for further medical opinion could be accomplished, the Board will not remand for negative evidence. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran’s favor and service connection for bilateral lower extremity DPN is granted. 38 C.F.R. § 4.3. REASONS FOR REMAND Hypertension The JMR specifically found that a VA examination relied upon by the Board was inadequate as it did not provide an opinion on the possible relationship between the Veteran’s hypertension and his conceded herbicide exposure while in-service. As such, the Board will remand the matter consistent with the terms of the JMR. The matter is REMANDED for the following action: Obtain an addendum opinion by an appropriate clinician regarding the etiology of the Veteran’s hypertension. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was due to the Veteran’s exposure to herbicides while in-service. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. In providing the opinion, the examiner must expressly address the November 2018 NAS report which moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. See National Academies of Sciences, Engineering, and Medicine 2018, Veterans and Agent Orange: Update 11 (2018) at 10, 487-498. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.