Citation Nr: 21013835 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-04 867 DATE: March 10, 2021 ORDER Service connection for hypertension (HTN), on the basis of substitution, is denied. Service connection for erectile dysfunction (ED), on the basis of substitution, is denied. Service connection for peripheral neuropathy, right lower extremity, on the basis of substitution, is denied. Service connection for peripheral neuropathy, left lower extremity, on the basis of substitution, is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to Agent Orange during service. 2. The Veteran’s hypertension (HTN), was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the disability is not shown to be otherwise etiologically related to an in-service injury or disease, to include his presumed exposure to Agent Orange or secondary to a service-connected disability. 3. The Veteran’s erectile dysfunction (ED), was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease or exposure; and it is not shown to have been caused or aggravated by a service connected disability. 4. The Veteran’s peripheral neuropathy of the bilateral lower extremities (peripheral neuropathy), was not shown as chronic in service and did not manifest to a compensable degree within a year of his last presumed exposure to herbicides; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease, to include as due to presumed exposure to Agent Orange; and it is not shown to have been caused or aggravated by a service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 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 in the Army from August 1960 to May 1966, to include the Republic of Vietnam. During his honorable service, he was awarded the Vietnam Service Medal and the Good Conduct Medal. He died in October 2018. The appellant is the Veteran’s surviving spouse. In July 2020, the VA granted the appellant’s request to be substituted in the Veteran’s place. See 38 U.S.C. § 5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran and his spouse testified before the undersigned Veterans Law Judge and the transcript of the hearing is associated with the claims file. In June 2017, the Board remanded the Veteran’s claim for further development to include VA examinations and medical opinions, which are discussed in detail below. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999), and the matter has returned to the Board for appellate review. Service Connection The appellant has stepped into the Veteran’s appeal seeking service connection for peripheral neuropathy of the bilateral lower extremities (peripheral neuropathy), erectile dysfunction (ED) and hypertension (HTN), which the Veteran believed was the result of his active service or exposure to herbicide agents while serving in the Republic of Vietnam during the Vietnam War. In the alternative, the appellant believes that the Veteran’s hypertension was the result of his service-connected ischemic heart disease. Of note, the Veteran’s exposure to herbicide agents in service has been conceded. See March 2012 rating decision and September 2020 Herbicide Exposure Verification Memo. Where (as here) there has been a substitution of parties, the record is not closed on the date of death of the original claimant. Rather, the claim remains open for the submission and development of any pertinent additional evidence. See 38 C.F.R. § 3.1010 (f)(3). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” See 38 C.F.R. § 3.303 (d). Service connection may be granted, on a secondary basis, for a disability, which is caused or aggravated by a service-connected disorder. 38 C.F.R. § 3.310. At the time of the Veteran’s death, service connection was in effect for coronary artery disease, posttraumatic stress disorder (PTSD), tinnitus, diabetes mellitus type 2, and bilateral hearing loss. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. In pertinent part, VA recognizes the Veteran’s claimed peripheral neuropathy as disease that is presumptively due to herbicide exposure, subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d). See 38 C.F.R. § 3.309 (e). However, to fall within the presumption, the peripheral neuropathy must onset within a year of the last known herbicide exposure. In this case, the Veteran asserted during his Board hearing that his peripheral neuropathy, HTN, and ED conditions are due to herbicide exposure (Agent Orange) during service. HTN and ED conditions are not diseases presumptively associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, to be considered to have been incurred in service under the circumstances outlined in that section. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the claims based on herbicide exposure for disabilities not covered by a presumption, do not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the evidence, in November 2016, the Veteran’s private physician Dr. F. B., wrote that he had treated the Veteran for 28 years for hypertension, erectile dysfunction, and peripheral neuropathy of the bilateral lower extremities. The Veteran attended VA examinations in November 2017 at which the diagnoses of peripheral neuropathy of the bilateral lower extremities, hypertension, and erectile dysfunction were confirmed. Dr. F. B. stated that he strongly believed that these conditions were the result of the Veteran’s contact with dioxin in Vietnam. He noted that he had been requested to send medical journals showing the link between dioxin and hypertension, which leads to erectile dysfunction, but he asserted that as a “healthcare professional” he knew there was a link, and he suggested that the government had the results of the hazards of dioxin. He submitted a similar letter in September 2013 regarding erectile dysfunction. While it is true that the National Academies of Sciences, Engineering, and Medicine reviews all the literature regarding dioxin/exposure to herbicide agents every two years and makes recommendations to the Secretary of VA (See National Academies of Sciences, Engineering, and Medicine, Veterans and Agent Orange: Washington, DC: The National Academies Press), neither hypertension nor erectile dysfunction has been added to the list of presumptive conditions. As such, given that the National Academies has reviewed the published evidence, a probative nexus opinion requires more than the conviction of a medical professional to support a grant of service connection. In this case, the Veteran’s private doctor’s letters suggested the possibility of a link, however, there is no coherent rationale provided to support the doctor’s conclusions. As such, the June 2017 Board decision determined that the opinion lacked significant probative value. However, the Board found that Dr. F. B’s opinions triggered the duty to obtain medical opinions and remanded the case. On remand, VA examinations, medical opinions and addendum/clarification medical opinions were obtained and associated with the record that included consideration of Dr. F B. opinions. Of note, the Veteran was afforded contract examinations for the male reproductive organ, hypertension and the peripheral nerves in November 2017 and medical opinions were provided. While the physical examinations and the examiners confirmed the presence of these disabilities, it appears that the examiners relied, in part, on opinions from Dr. FB. As discussed above, these opinions are not of probative value as they do not contain sufficient rationale for the opinions reached. The evidence of record includes a July 2018 medical opinion examination input report provided by the RO. The report reports that the November 2017 examinations and medical opinions have several flaws/problems and based on the noted flaws, the opinions were re-requested to include the Board’s June 2017 remand orders. Subsequently, a September 2020 Disability Benefits Questionnaire (DBQ) addendum/clarification of medical opinions regarding the Veteran’s appealed issues and a December 2020 BVA Medical Opinion DBQ was provided and is of record. The Board finds the September and December 2020 examinations are at the very least in substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999) 1. Hypertension With regard to the possibility of service connection on a direct or presumptive basis (other than as due to exposure to Agent Orange), the Veteran is not shown to have had, nor did he assert any relevant complaints, treatment, or diagnoses of HTN during service. See June 2013 service connection claim for HTN asserting disability due to exposure to Agent Orange during active service. In addition, the Veteran testified at the Board hearing that he was diagnosed with hypertension in the mid-eighties, many years after he separated from service. The separation examination dated May 1966 is negative for complaints of hypertension at the time of separation and without comments or concerns of hypertension by the medical officer. The Veteran’s blood pressure reading at separation was recorded as 120/60. Pursuant to the Board’s remand directives, the September 2020 VA addendum/clarification opinion found that the Veteran’s hypertension was less likely than not (less than 50 percent probability) due to military service. The VA September and December 2020 medical opinion rationale was that the Veteran’s service records failed to show evidence of onset of HTN during service. In addition, the medical opinions confirmed that the Veteran’s blood pressure reading at the separation examination in May 1966 was noted to have been 120/60. The medical opinions reported that the Veteran’s blood pressure readings were not in the hypertensive range until the 1980s, which is also supported by the Veteran’s Board testimony. The December 2020 VA opinion added that the most likely etiology of the Veteran’s hypertension is the normal aging process or genetics. He provided a detailed list and explanation for risk factors. The medical opinion reported that per the Veteran’s private primary care note from Dr. F. B., dated in September 2013, the Veteran had been treated for his hypertension for 28 years, which would indicate that his earliest medical evidence of hypertension treatment began approximately in 1988, many years after leaving military service in 1966. The Board finds that there is no competent opinion of record in support that the claimed HTN condition was caused by or incurred during the Veteran’s active military service. There is no evidence to show that hypertension was manifest within a year of separation from service. Accordingly, service connection on a direct or presumptive basis (other than as due to exposure to Agent Orange) is not warranted. The Board also directed that the RO obtain a VA opinion addressing whether the Veteran’s claimed hypertension was proximately due to or aggravated (made worse) by any of the Veteran’s service-connected disabilities, to include ischemic heart disease. The Veteran testified that his HTN began in the mid-eighties and that his ischemic heart disease began in 2004. An April 2012 Ischemic Heart Disease (IHD)VA examination report noted that IHD does not include hypertension as the condition does not qualify within the generally accepted medical definition of IHD. The December 2020 VA medical opinion concluded that there is no medical evidence that the Veteran’s hypertension was proximately due to or the result of or permanently aggravated by his service-connected ischemic heart disease. The opinion reported that the Veteran is noted in a September 2013 letter provided by his private provider Dr. F. B. M.D. to have been treated for hypertension for 25 years dating the diagnosis of hypertension to approximately 1988. Thus, the VA examiner concluded that the Veteran’s diagnosis of hypertension predated the diagnosis of his service-connected heart disease, which is diagnosed in November 2004. See November 2011 VA Form 21-0960A-1 Ischemic Heart Disease Disability Benefits Questionnaire. The VA examiner again opined that the most likely etiology of the Veteran’s hypertension is the normal aging process or genetics. To the extent that the Board has previously granted service connection for ischemic heart disease, there is no competent evidence of record to show that his HTN was caused or aggravated by ischemic heart disease, and the record and the December 2020 VA opinion weighs against such a possibility. See 38 C.F.R. § 3.310. Therefore, service connection is denied on a secondary basis. However, the Veteran primarily argues that service connection is warranted for his HTN based on his exposure to Agent Orange during his service in Vietnam. He testified before the Board that his HTN is related to Agent Orange because he was stationed at the second hottest spot in Vietnam around the perimeter. Although the Veteran is presumed to have been exposed to Agent Orange, the applicable law does not include hypertension as a condition for which presumptive service connection may be granted based on exposure to Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Accordingly, service connection is not warranted for his HTN based on the presumptions afforded to Veterans who are presumed to have been exposed to Agent Orange during service. There is no competent evidence of record which associates hypertension, with exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, service connection is not warranted on this basis. 2. ED With regard to the possibility of service connection on a direct or presumptive basis (other than as due to exposure to Agent Orange), the Veteran is not shown to have had, nor did he assert any relevant complaints, treatment, or diagnoses during service. See June 2013 service connection claim for ED asserting disability due to exposure to Agent Orange during active service. The separation exam dated May 1966 is negative for Veteran complaint of ED at the time of separation without comments or concerns of ED by the provider. Per the Veteran’s private primary care note from Dr. F. B. and dated in September 2013, the Veteran had been treated for his ED for 25 years. Pursuant to the Board’s remand directive, the September 2020 VA addendum/Clarification DBQ opined that the Veteran’s erectile dysfunction is less likely than not (less than 50 percent probability) to be due to military service. The rationale provided was that the Veteran’s service treatment records do not contain complaints, treatment, or diagnosis for ED condition and there is also no evidence in the record of ED within one year following the Veteran’s discharge from active duty in 1966. Upon review of the available medical records to include the September 2013 and November 2016 private opinions from Dr. F. B., the December 2020 VA DBQ medical opinion noted in the medical opinion that there is no medical evidence that the Veteran’s erectile dysfunction was caused by military service. He reported that the Veteran is noted in a letter provided by his private provider Dr. F. B.,M.D. on September 2013 to have been treated for erectile dysfunction for 25 years, thus dating his diagnosis of erectile dysfunction to approximately 1988, and many years after separating from service in 1966. The opinion concluded that the most likely etiology of the Veteran’s erectile dysfunction is the normal aging process or possibly his hypertension medication. The Veteran was noted to on Dr. F. B.’s letter to be taking Benazepril, Metoprolol and Hydrochlorothiazide for hypertension control. The VA medical opinion reported that a common side effect of Hydrochlorothiazide is sexual dysfunction. This is over 20 years after separation from service. The Board finds that here is no competent opinion of record to support the claimed ED condition was caused by or incurred during the Veteran’s active military service. There is no evidence to show that ED was manifest within a year of separation from service. Accordingly, service connection on a direct or presumptive basis (other than as due to exposure to Agent Orange) is not warranted. Moreover, the Veteran primarily argues that service connection is warranted for this condition based on his exposure to Agent Orange during his service in Vietnam. Although the Veteran is presumed to have been exposed to Agent Orange, the applicable law does not include ED as a condition for which presumptive service connection may be granted based on exposure to Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Accordingly, service connection is not warranted for his ED based on the presumptions afforded to Veterans who are presumed to have been exposed to Agent Orange during service. Id. In addition, there is no competent evidence of record which associates ED, with exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, service connection is not warranted on this basis. 3. Peripheral Neuropathy With regard to the possibility of service connection on a direct or presumptive basis (other than as due to exposure to Agent Orange), the Veteran is not shown to have had any relevant complaints, treatment, or diagnoses regarding peripheral neuropathy, right and/or left lower extremity during service. Specifically, the separation examination dated in May 1966 is negative for Veteran complaints of neuropathic symptoms and no comments or abnormalities are noted by the examiner upon separation. Moreover, the Veteran testified before the Board that he began to have peripheral neuropathy problems in 1997, when he was first diagnosed due to tingling in his legs. The Veteran was documented to have idiopathic neuropathy by podiatrist, Dr. R. S. E., on December 2011, which is many years after separation from service. Pursuant to the Board’s remand directives a VA addendum/clarification DBQ dated in September 2020 is of record. Here, the medical opinion addendum opined that the Veteran’s peripheral neuropathy is less likely than not (less than 50 percent probability) to be due to military service. The rationale was that the Veteran had a longstanding chronic low back pain with MRI findings in 2005 that indicate L4/5-disc involvement. Additional rationale was that degenerative disc disease is a well-recognized cause of peripheral neuropathy. However, the Veteran is not currently service connected for any back conditions. In addition, the examiner noted that the Veteran reported not having symptoms of neuropathy within one year of leaving Vietnam during his Board hearing. The examiner concluded that the Veteran’s records also fail to provide supporting evidence showing onset of peripheral neuropathy. A December 2020 addendum medical opinion DBQ is also of record. The medical opinion stated that the record, including VA examinations/opinions and the private opinions from Dr. F. B. dated in September 2013 and November 2016 was reviewed. The examiner clarified when the Veteran’s peripheral neuropathy first begin to manifest, and what symptoms were present at that time. The examiner reported that the Veteran was noted to have been seen in December 2011 by Dr. R. S. E., D.P.M. with a chief complaint of numbness in both feet with some pain at times for approximately four months duration and was diagnosed with neuropathy, idiopathic. Therefore, the examiner concluded that his neuropathy began in 2011 and was noted by Dr. R. S. E., to be most likely idiopathic. The earliest medical evidence of the Veteran’s claimed bilateral peripheral neuropathy conditions is dated in December 2011. This is over 40 years after separation from service. The Board finds that there is no competent opinion of record in support of the Veteran’s claim. There is no evidence to show that peripheral neuropathy of the bilateral lower extremities was manifest within a year of separation from service. Accordingly, service connection on a direct or presumptive basis (other than as due to exposure to Agent Orange) is not warranted. However, the Veteran primarily argues that service connection is warranted for peripheral neuropathy of the bilateral lower extremities based on his exposure to Agent Orange during his service in Vietnam. In this case, the Veteran is presumed to have been exposed to Agent Orange and peripheral neuropathy is a condition that is presumed to be service connected, but only if the peripheral neuropathy began to manifest to a compensable degree within one year of the last herbicide exposure. 38C.F.R. §§ 3.307, 3.309. The Veteran has a diagnosis of peripheral neuropathy, bilateral lower extremities. However, he testified before the Board that he did not have the symptoms of peripheral neuropathy within a year of leaving Vietnam and the evidence of record, and the evidence of record shows the first documented complaint of peripheral neuropathy occurred decades after leaving service. While, Dr. F.B. states in his private opinion letter dated in 2016 that the Veteran had been diagnosed with bilateral peripheral neuropathy for 28 years, there is no other medical records supporting the private doctor’s conclusionary statements that these conditions were the result of his contact with dioxin in Vietnam. Upon remand and review of the record and Dr. F.B.’s letters in support of the Veteran’s claim, the December 2020 medical opinion concluded that there is no medical evidence that the Veteran’s peripheral neuropathy was a result of herbicide exposure. The VA medical opinion explained that the Veteran’s complaint of neuropathy began in 2011, which is many years after leaving service and would not be due to herbicide exposure. The rationale was that based on cumulative scientific data reported by the NAS since 1993, the Secretary has determined that a positive association does not exist between herbicide exposure and chronic peripheral nervous system disorders such as late-onset peripheral neuropathy and that a presumption of service connection is not warranted. In this case, the Veteran is presumed to have been exposed to Agent Orange in service and currently diagnosed with peripheral neuropathy. The earliest medical evidence of the Veteran’s claimed condition is dated in December 2011, which clearly reflects that his peripheral neuropathy condition did not manifest to a compensable degree within one year of the last exposure in service (1966). 38C.F.R. §§ 3.307, 3.309. The weight of the evidence is also against direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, service connection for peripheral neuropathy is denied. In summary, the issues on appeal are primarily based on the contention that hypertension, erectile disfunction and peripheral neuropathy of the bilateral lower extremities were caused by service, to include as due to exposure to Agent Orange during service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s reports and post-service medical records have been discussed. There is no competent medical opinion of record in support of any of the claims on any basis. Given the foregoing, the Board finds that the service treatment records, and the medical evidence, outweigh the Veteran’s contentions that he has HTN, ED and peripheral neuropathy of the bilateral lower extremities, due to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims are denied. The Board notes that during the pendency of this appeal and before the Veteran died the Veteran was diagnosed with diabetes mellitus type 2 in 2015. A July 2018 rating decision granted the Veteran’s claim for service-connection for diabetes mellitus type 2 on the basis of presumption due to Agent Orange exposure, effective July 12, 2018. 38 C.F.R. § 3.309. In this case, the Veteran’s diagnoses for erectile dysfunction, high blood pressure and peripheral neuropathy on appeal pre-existed his diabetes mellitus type 2, 2015 diagnosis. Upon review of the record, there is no evidence reflecting that the Veteran’s pre-existing erectile dysfunction, high blood pressure or peripheral neuropathy conditions were caused by or aggravated (made worse) by his service-connected diabetes condition subsequently diagnosed in 2015. Furthermore, upon notice of the grant of service connection, neither the Appellant, nor her representative’s in the January 2021 brief, has raised this issue on appeal. The Board would like to extend its deepest sympathy for the appellant’s loss of her spouse and offer its heartfelt appreciation for the Veteran’s military service, including his service in the Republic of Vietnam. Unfortunately, the evidence of record does not establish an entitlement to service connection for the issues claimed here and the claims are denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.