Citation Nr: 21011138 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 09-27 535 DATE: March 1, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a sleep disorder is denied. Entitlement to service connection for anemia is denied. REMANDED Entitlement to service connection for generalized osteoarthritis is remanded. Entitlement to service connection for numbness of the hands is remanded. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran had “boots on the ground” service in the Republic of Vietnam during his active service and is therefore presumed to have been exposed to herbicide agents. 2. Resolving all reasonable doubt in favor of the Veteran, his hypertension is etiologically linked to his active duty service. 3. The Veteran’s difficulty sleeping is a symptom of his service-connected posttraumatic stress disorder (PTSD) and is not a separate disability for which service connection can be granted. 4. The preponderance of the evidence does not support that the Veteran’s anemia is etiologically linked to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307; 3.309. 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for anemia have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to March 1970. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in May 2018 for further development to include obtaining adequate medical opinions as to the nature and etiology of the Veteran’s hypertension, sleep disorder, anemia, generalized osteoarthritis and numbness of the hands. New medical examinations and opinions were associated with the file in October 2019, June 2020, August 2002 and September 2020. The Board finds that the March 2018 medical opinion issued in connection with the Veteran’s claims for service connection for a sleep disorder and anemia are adequate. Thus, the Board determines that there has been substantial compliance with the May 2018 remand directives as to that claim, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). The Board notes that the October 2019 examiner opined only as to presumptive service connection for hypertension. As the examiner did not address direct service connection for hypertension, the Board determines that there has not been substantial compliance with the May 2018 remand directives requesting an adequate medical opinion as to direct service connection for hypertension. Id. However, in light of the favorable decision to grant the Veteran’s claim of service connection for hypertension, further remand is not required. To the extent that the requested development was not substantially complied with regarding the claims for service connection for generalized osteoarthritis, and numbness of the hands, those claims are not ready for appellate review and are addressed in the Remand portion of this decision. Id. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran 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’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). Regarding service connection due to herbicide agent exposure, VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypertension The Veteran contends that he has hypertension due to his exposure to certain herbicide agents during service. In the alternative, the Veteran asserts that his hypertension is aggravated by his service-connected PTSD. The Board finds that service connection is warranted on a direct basis. The Veteran is diagnosed with hypertension, thus meeting the first element of service connection. In-service herbicide agent exposure is presumed where a veteran has qualifying service in Vietnam between January 9, 1962 and May 7, 1975 unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The Board notes that the Veteran has documented service in the Republic of Vietnam as evidenced by his receipt of awards such as the Vietnam Campaign Medal and Vietnam Service Medal. The Veteran’s military personnel records confirm “boots on the ground” service in Saigon, South Vietnam in 1969. As discussed above, 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision regarding herbicide agent exposure, and the list does not include hypertension. Thus, a connection between the Veteran’s hypertension and herbicide agent exposure cannot be presumed. However, service connection for hypertension is established on a direct basis. As mentioned, a current diagnosis for hypertension is established. The Veteran has presumed exposure to Agent Orange as an in-service incurrence for his hypertension. The Board acknowledges that in October 2007, a VHA expert opined as to the etiology of the Veteran’s hypertension. The expert explained that the Veteran’s hypertension was probably multifactorial and that he saw no unique or special features implicating Agent Orange exposure. However, the expert stated that the role of Agent Orange or PTSD in the pathogenesis of the Veteran’s hypertension was difficult to assess and that he could not with confidence rule them in or out. As this opinion was equivocal, the Board remanded the matter for a clear opinion. The Veteran was afforded a VA examination for hypertension in October 2019. The examiner opined that the Veteran’s hypertension was not related to his active duty service, to include exposure to herbicide agents. However, the examiner’s opinion was based wholly on lack of treatment during service and the fact that hypertension is not one of the disabilities presumed to be related to herbicide exposure. Thus, the opinion is of limited probative value. The National Academies of Sciences, Engineering and Medicine recently opined that there is sufficient evidence of an association between exposure to herbicide agents used during the Vietnam War and hypertension. See The National Academies of Sciences, Engineering, and Medicine, Committee Review the Health Effects in Vietnam Veterans Exposure to Herbicides (Eleventh Biennial Update) (2018), available at https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018. Hypertension was moved to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. The research showed that there is enough epidemiologic evidence to conclude that there is a positive association between herbicide agent exposure and hypertension in Vietnam Veterans. Id. This new research demonstrates a causal relationship between the Veteran’s hypertension and exposure to an herbicide agent during service. Given the evidence of record as to a nexus for the Veteran’s hypertension and his exposure to herbicides, the Board finds that there is relative equipoise as to this question. Thus, resolving all reasonable doubt in favor of the Veteran, a nexus has been established. As all three elements of service connection are established, service connection for hypertension is granted. 2. Entitlement to service connection for a sleep disorder The Veteran contends that he currently has a sleep disorder, which he asserts is related to his active service. Specifically, the Veteran reports difficulty getting to sleep and staying asleep. His VA and private treatment records document poor sleep, nightmares and early morning awakening. The Board finds that the preponderance of evidence shows that the Veteran’s difficulty sleeping is a symptom of an underlying condition and is not a separate medical condition for which service connection can be granted. The Veteran’s medical records do not contain an independent diagnosis of any sleep disorder. Here, the evidence shows that the Veteran’s difficulty sleeping has most consistently been treated as a symptom of his service-connected PTSD. In May 2007, the Veteran provided private treatment records from the early 1990s. The records reveal the Veteran reported difficulty sleeping during the course of treatment for his PTSD. The private psychologist found the Veteran exhibited no evidence of a specific sleep disorder. The Veteran has been afforded multiple VA examinations to assess the severity of his PTSD. The Veteran has consistently reported chronic sleep impairment and sleep disturbance among the symptoms of his PTSD. Most recently, at a September 2019 VA examination for PTSD, the Veteran described worsening sleep problems, including inability to fall asleep, racing thoughts, and waking up after a few hours. He reported he continues to have nightmares. The examiner opined that the Veteran’s sleep impairments, while negatively impacting his life, do not meet the criteria for a diagnosis of a sleep disorder. Based on the above and remaining evidence, the Board finds that the Veteran’s difficulty sleeping is a symptom of his PTSD for which the Veteran is already service-connected and receiving compensation. The Veteran’s psychiatric disability is evaluated under Diagnostic Code 9411 which specifically contemplates sleep disturbance as part of the evaluation. 38 C.F.R. § 4.125, Diagnostic Code 9411. Therefore, the Veteran’s symptom of difficulty sleeping is contemplated pursuant to the appropriate rating schedule for that disability and separate compensation would constitute double compensation for the same symptoms and violate the rule against pyramiding. See 38 C.F.R. § 4.14. For these reasons, the claim for a separate sleep disorder must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for anemia The Veteran contends that he has anemia which is related to his active duty service. The Veteran is diagnosed with anemia. Therefore, the first element of service connection is established. The record does not support, nor does the Veteran contend that his anemia had its onset during service. Although the Veteran did not assert a specific disease, injury or incident during service that could be related to his anemia, the Veteran was provided a VA examination in October 2019.The examiner opined as to whether the Veteran’s anemia was related to his service, to include exposure to herbicide agents. As discussed above, 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision regarding herbicide agent exposure, and the list does not include anemia. Thus, a connection between the Veteran’s anemia and herbicide agent exposure cannot be presumed. Nonetheless, although service connection is not warranted on a presumptive basis, the Board must consider whether service connection is warranted on any other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record has established exposure to herbicide agents as an in-service incurrence for the Veteran’s anemia. Thus, he has a current disability and an in-service injury or event, however, the evidence must still establish a nexus between his herbicide exposure in service and his current disability. Based on the record, the claim must fail as there is no evidence to establish a link between the Veteran’s anemia and exposure to herbicide agents. The October 2019 VA examiner opined that the Veteran’s anemia was not etiologically linked to his active duty service. The examiner explained that anemia is not known to be caused by herbicide exposure. Further, the examiner found no evidence that the Veteran’s anemia was incurred in service. The record does not contain any competent evidence to contradict the October 2019 examiner’s findings. In fact, there is no evidence of an indication that his anemia is related to his active service. 38 U.S.C. § 5103A. Notably, the Veteran himself has not asserted that his anemia had its onset in service. Indeed, the medical evidence indicates that Veteran’s anemia was first documented in 2002 with some resolution in March 2003. Given the probative evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim. As such, service connection for anemia is denied. REASONS FOR REMAND A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, supra. This obligation is mandatory, not discretionary. 1. Entitlement to service connection for generalized osteoarthritis is remanded. Regrettably, further remand is necessary to obtain an adequate opinion as to the etiology of the Veteran’s generalized osteoarthritis. The Board acknowledges that the October 2019 VA examiner opined that the Veteran’s generalized osteoarthritis was not related to his service. However, the opinion relied solely on a lack of treatment during service. The Board affords little probative value to this opinion as the examiner failed to adequately consider probative lay evidence of record. The Board notes that the absence of documented treatment or complaints in service or thereafter is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, it remains unclear the relationship between the Veteran’s service-connected bilateral hip and knee conditions and his generalized osteoarthritis. The examiner opined that the Veteran’s generalized osteoarthritis was less likely than not proximately due to or the result of the Veteran’s service-connected joint conditions. Specifically, the examiner explained that the literature does not support osteoarthritis of one joint as a cause of osteoarthritis of another joint. While the examiner’s rationale addressed elements of secondary service connection, neither the opinion nor rationale addressed aggravation. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of “aggravation” is pertinent for the Board to properly adjudicate the Veteran’s claim. Additionally, the Board notes that if an examination report does not contain sufficient detail, “it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return inadequate examination report). Therefore, an addendum medical opinion addressing aggravation is needed for proper adjudication of the Veteran’s claim. 2. Entitlement to service connection for numbness of the hands is remanded. The record has raised the theory that the Veteran’s claimed numbness of the hands is secondary to his claimed generalized osteoarthritis. The October 2019 VA examiner found the medical record did not support a relationship between numbness of the hand, legs and feet with the right knee, but there was evidence to support a possible relationship to generalized osteoarthritis. As the claims are therefore intertwined on this basis, a remand is also warranted for the Veteran’s service connection claim for numbness of the hands. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his generalized osteoarthritis and numbness of the hands. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. After completion of the development requested above, the AOJ should forward the entire claims file in electronic records to a suitably qualified examiner other than the October 2019 examiner for addendum opinions on the nature and etiology of the Veteran’s generalized osteoarthritis and numbness of the hands. If additional examination is indicated, it should be scheduled in accordance with applicable procedures and all indicated studies should be performed. The claims file must be available to and be reviewed by the examiner, to include any newly obtained evidence as a result of the above ordered development. The examiner should provide an opinion regarding the nature and etiology of the Veteran’s generalized osteoarthritis, which addresses the Veteran’s service treatment records, post-service medical records, and lay statements. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to the following: a. whether it is as least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s generalized osteoarthritis began in or is related to his military service, b. whether it is at least as likely as not that the generalized osteoarthritis is caused or proximately due to his service connected disabilities, c. whether it is at least as likely as not the Veteran’s generalized osteoarthritis has been aggravated by his service-connected bilateral hip and knee disabilities. The examiner should note aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. d. If, and only if, the Veteran’s generalized osteoarthritis is found to be related to his active service and/or service connected disabilities, the examiner should also opine as to whether is it at least as likely as not (i.e., 50 percent probability or more) that the Veteran’s hand numbness is caused by or proximately due to his generalized osteoarthritis. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. After ensuring compliance with these objectives, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.