Citation Nr: 21011001 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 11-21 761 DATE: February 26, 2021 ORDER The appeal for entitlement to service connection for ischemic heart disease is dismissed. The appeal for entitlement to service connection for a back disability is dismissed. The appeal for entitlement to service connection for neuropathy of the bilateral lower extremities is dismissed. Entitlement to service connection for hypertension, as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for a liver disability, to include liver cysts, is remanded. Entitlement to service connection for a renal disability, to include kidney cysts, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for neuropathy of the bilateral upper extremities is remanded. FINDINGS OF FACT 1. While in remand status, an October 2020 rating decision granted the Veteran’s claims of entitlement to service connection for coronary artery disease associated with herbicide exposure (claimed as ischemic heart disease), degenerative joint disease of the thoracolumbar spine, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. 2. The Veteran served in Vietnam; thus, exposure to herbicides is conceded. 3. The Veteran has a diagnosis of hypertension. 4. Epidemiologic evidence concludes that there is “sufficient” evidence of an association between hypertension and herbicide exposure. 5. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed hypertension is related to his exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for ischemic heart disease has been granted, there remains no case or controversy as to the issue of entitlement to service connection for ischemic heart disease. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. As the benefit sought on appeal with respect to the matter of service connection for a back disability has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a back disability. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 3. As the benefit sought on appeal with respect to the matter of service connection for neuropathy of the bilateral lower extremities has been granted, there remains no case or controversy as to the issue of entitlement to service connection for neuropathy of the bilateral lower extremities. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 4. The criteria for establishing entitlement to service connection for hypertension, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1966 to October 1968, to include service in Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated December 2010 and May 2013 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In May 2019, the Board, in pertinent part, remanded the instant issues on appeal for further development. While the matter was in remand status, the RO granted the claims of entitlement to service connection for coronary artery disease associated with herbicide exposure, degenerative joint disease of the thoracolumbar spine, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity in an October 2020 rating decision, resolving the claims of entitlement to service connection for ischemic heart disease, a back disability, and neuropathy of the bilateral lower extremities. The remaining issues have returned to the Board for further appellate consideration. Dismissal 1. Entitlement to service connection for ischemic heart disease is dismissed. See Argument Below 2. Entitlement to service connection for a back disability is dismissed. See Argument Below 3. Entitlement to service connection for neuropathy of the bilateral lower extremities is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, an October 2020 rating decision granted the Veteran’s claims of entitlement to service connection for coronary artery disease associated with herbicide exposure, degenerative joint disease of the thoracolumbar spine, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. This action resolved the claims for service connection. As a result, no case or controversy regarding the matters of service connection for ischemic heart disease, a back disability, and neuropathy of the bilateral lower extremities remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to these matters, and the matters are dismissed. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 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). 4. Entitlement to service connection for hypertension, as due to herbicide exposure, is granted. The Veteran seeks entitlement to service connection for hypertension, as due to herbicide exposure. In this case, the record reflects that the Veteran served in the Republic of Vietnam; thus, exposure to herbicides is conceded. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a possible association” between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). The Board notes that the NAS serves as an advisor on scientific matters and is comprised of experts in the given field. The Board finds the NAS upgrade highly probative. In sum, the Veteran has a current diagnosis of hypertension, and he is presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. The Board thus concludes that, at the very least, the evidence of a nexus is in equipoise. Accordingly, the Board, resolving any reasonable doubt in the Veteran’s favor, finds that the criteria to establish service connection for hypertension are met. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a liver disability, to include liver cysts, is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA examination to determine the nature and etiology of the claimed liver disability. The examiner was directed to address whether the Veteran’s liver disability was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). The examiner was further advised to provide a thorough rationale for any opinion. Accordingly, the Veteran was afforded a VA examination for his liver disability in February 2020. The examiner provided a diagnosis of hepatic cyst. The examiner opined that the liver disability is less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. The examiner noted that the cause of hepatic cysts is unknown. Hepatic cysts are generally found incidentally on imaging studies and are asymptomatic. The examiner concluded that the disability is unrelated to the Veteran’s service-connected PTSD. The Board finds that the February 2020 opinion is inadequate. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has indicated that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court has also indicated that an opinion that there is “no etiological relationship” may be insufficient to address the question of aggravation. See Allen v. Brown, 7 Vet. App. 439, 449 (1995). (“[I]t is a big stretch of the English language to construe the phrase ‘no etiological relationship between the veteran’s service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis’ as encompassing aggravation, especially considering the use of the word ‘onset.’”). In light of the above, to ensure compliance with the May 2019 remand directives, a remand is required for a new VA opinion of the claimed liver disability. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a renal disability, to include kidney cysts, is remanded. The Veteran asserts that his renal disability may be related to his hypertension. In light of the grant of entitlement to service connection for hypertension, remand is warranted to obtain a medical opinion in order to determine whether the Veteran’s renal disability was either caused or has been aggravated by his now service-connected hypertension. 3. Entitlement to service connection for a bilateral foot disability is remanded. Pursuant to the May 2019 remand instructions, the Veteran was afforded a VA examination for his feet in February 2020. The Board finds that the opinion associated with this VA examination is inadequate. In May 2019, the Board directed the AOJ to provide the Veteran with another VA examination to determine the nature and etiology of his claimed bilateral foot disability, as the previous examination conducted in March 2013 did not appear to consider the Veteran’s lay reports of observable symptomatology. Specifically, as noted in the May 2019 remand, during the February 2019 hearing, the Veteran reported that he experienced extensive lesions on both of his feet in service, and he was once informed that it was “jungle rot.” He stated that he treated the condition in service with only limited improvement. The condition continued after his discharge from service to present day. Accordingly, the Veteran was afforded a VA foot conditions examination in February 2020. The examiner provided diagnoses of metatarsalgia, hallux valgus, plantar fasciitis, degenerative arthritis, and calcaneal spurs of the bilateral feet. The examiner opined that the Veteran’s bilateral foot disability was less likely than not incurred in or caused by service. The examiner indicated that, after reviewing the Veteran’s medical records, there is not enough evidence to support the Veteran’s claim. There is a lack of complaints, diagnosis, or treatment for a bilateral foot condition during service. The Board finds the February 2020 VA opinion to be inadequate. The May 2019 remand directives instructed the examiner to address the Veteran’s lay statements. However, the examiner failed to consider and discuss such relevant evidence. As such, the opinion is inadequate because it did not consider all relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Also, the examiner indicated that there is a lack of complaints, diagnosis, or treatment for a bilateral foot condition during service in the provided records. The Board finds that this opinion has no probative value as it relies on the absence of evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, in light of the above deficiencies of the February 2020 VA examination, another remand is required for completion of the directives of the May 2019 Board remand. See Stegall, 11 Vet. App. at 271. 4. Entitlement to service connection for neuropathy of the bilateral upper extremities is remanded. In February 2020, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed disability of neuropathy of the bilateral upper extremities. The examiner concluded that there is no diagnosis of bilateral upper extremity neuropathy because there are no findings, signs, and/or symptoms to support a diagnosis. Thus, the examiner provided an opinion against the claim. However, a November 2012 VA treatment record notes that the Veteran reported numbness and tingling in both hands that increased when he drove. He further reported that the condition woke him up at night. The examiner noted that the Veteran was known to have peripheral neuropathy. The Board concludes that a remand is necessary because despite the lack of finding of issues with the Veteran’s bilateral upper extremities on the February 2020 VA examination, there was a diagnosis related to such during the claims period. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the “current disability” requirement for service connection is met if disability is shown at any time during the claims period). Thus, based on the above, a new VA examination is warranted. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the February 2020 VA examination for liver conditions. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the February 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether the Veteran’s liver disability is at least as likely as not related to service, to include as secondary to his service-connected PTSD. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that the Veteran’s liver condition was either caused or aggravated beyond the natural progression by the Veteran’s service-connected PTSD. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any renal disorder. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any renal condition is at least as likely as not related to service, to include as secondary to his service-connected hypertension. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that the Veteran’s renal condition was either caused or aggravated beyond the natural progression by the Veteran’s service-connected hypertension. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Return the claims file to the examiner who performed the February 2020 VA foot conditions examination. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the February 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any diagnosed foot condition is at least as likely as not related to an in-service injury, event, or disease. All lay statements describing the Veteran’s symptoms, manifestations, and onset must be fully considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his peripheral neuropathy of the bilateral upper extremities. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any diagnosed peripheral neuropathy of the bilateral upper extremities is at least as likely as not related to service, to include as secondary to his service-connected PTSD and associated alcohol dependence. The examiner must address all diagnosed nerve conditions of the bilateral upper extremities during the claims period. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that the Veteran’s peripheral neuropathy of the bilateral upper extremities was either caused or aggravated beyond the natural progression by the Veteran’s service-connected PTSD and associated alcohol dependence. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 6. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate 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.