Citation Nr: 21014391 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-03 015 DATE: March 12, 2021 ORDER Entitlement to service connection for impotence, as secondary to medications prescribed for service-connected lumbar spine disability, for purposes of substitution, is granted. Entitlement to service connection for a cervical spine disability, for purposes of substitution, is denied. Entitlement to service connection for right upper extremity radiculopathy, for purposes of substitution, is denied. Entitlement to service connection for left upper extremity radiculopathy, for purposes of substitution, is denied. REMANDED Entitlement to service connection for acute myeloid leukemia, for purposes of substitution, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran experienced impotence as a result of medications prescribed for his service-connected lumbar spine disability. 2. A chronic cervical spine disability was not present in service, did not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current cervical spine disability was not otherwise etiologically related to an in-service injury or disease. 3. Radiculopathy of the right upper extremity was not present in service, did not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current radiculopathy of the right upper extremity disability was not otherwise etiologically related to an in-service injury or disease. The Veteran was not diagnosed with right upper extremity peripheral neuropathy, early-onset, diabetic, or otherwise, during the period on appeal. 4. Radiculopathy of the left upper extremity was not present in service, did not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current radiculopathy of the left upper extremity disability was not otherwise etiologically related to an in-service injury or disease. The Veteran was not diagnosed with left upper extremity peripheral neuropathy, early-onset, diabetic, or otherwise, during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for impotence, secondary to medications prescribed for service-connected degenerative joint disease of the lumbar spine, have been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1962 to July 1990, and is presumed to have been exposed to herbicide agents while serving along the Korean Demilitarized Zone (DMZ) during a period of conceded herbicide usage. He died in August 2017. The appellant is the Veteran’s surviving spouse and has been substituted as the claimant in the Veteran’s claims pending at the time of his death for purposes of processing them to their completion. As set forth below, she is also the appellant in the claim of service connection for the cause of the Veteran’s death. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A September 2016 rating decision, inter alia, denied service connection for cervical spine disability and radiculopathy of the bilateral upper extremities. A timely Notice of Disagreement (NOD) was received in October 2016. As directed by the Board in the March 2020 remand, a Statement of the Case (SOC) was issued in June 2020. See Manlincon v. West, 12 Vet. App. 238 (1999). A timely substantive appeal was received in August 2020. A January 2018 rating decision, inter alia, denied the appellant’s claim of service connection for the cause of the Veteran’s death and, for accrued benefits purposes, service connection for acute myeloid leukemia, and impotence. The appellant filed a timely NOD, received in June 2018. An SOC was issued in January 2019. A timely substantive appeal was received in January 2019. In January 2020, the RO determined that the appellant was eligible for substitution as the claimant and granted her request for substitution. 38 U.S.C. § 5121A. As such, the service connection issues have been recharacterized on the cover page of this decision. The Board, inter alia, remanded the issues of entitlement to service connection for acute myeloid leukemia, impotence, and impaired kidney function, for purposes of substitution, and entitlement to service connection for the cause of the Veteran’s death in March 2020. A Supplemental Statement of the Case (SSOC) was issued in September 2020. An August 2020 rating decision, inter alia, awarded entitlement to service connection for diabetes mellitus type II for purposes of accrued benefits and assigned an initial 20 percent evaluation, effective February 4, 2015, and entitlement to service connection for diabetic nephropathy for purposes of accrued benefits and assigned an initial 80 percent rating, effective June 5, 2017. Such constitutes a full award of the benefit sought on appeal with respect to the claims. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and other organic diseases of the nervous system, such as radiculopathy or peripheral neuropathy, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, service connection is presumed for certain diseases, including early-onset peripheral neuropathy, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 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 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for impotence, as secondary to medications prescribed for service-connected lumbar spine disability, for purposes of substitution, is granted. The Board finds that service connection for impotence, secondary to medications prescribed for service-connected lumbar spine disability, is warranted. A January 1999 urology note states that the Veteran had been experiencing erectile dysfunction while taking various blood pressure medications. However, since his blood pressure medication was changed to benazepril, his erectile dysfunction had improved. This was well prior to the period on appeal. An April 2016 clinical note states that the Veteran was prescribed opiates for his service-connected lumbar spine disability. During a medication management discussion, there was a specific discussion regarding opioids in relation to hormonal disturbance and suppression leading to various other issues. The effects on impotence and sexual dysfunction were stressed. Based on the foregoing clinical evidence as well as the lay evidence of record, and absent any evidence to the contrary, the Bord finds that the evidence is at least in relative equipoise as to whether impotence is causally related to medications prescribed for the Veteran’s service-connected disabilities. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for impotence on a secondary basis. 2. Entitlement to service connection for a cervical spine disability, for purposes of substitution, is denied. 3. Entitlement to service connection for right upper extremity radiculopathy, for purposes of substitution, is denied. 4. Entitlement to service connection for left upper extremity radiculopathy, for purposes of substitution, is denied. The Board finds that the most probative evidence establishes that entitlement to service connection for a cervical spine disability, right upper extremity radiculopathy, or left upper extremity radiculopathy is not warranted. Service treatment records are negative for pertinent complaints or observations regarding the cervical spine or upper extremity neurological symptoms, save for those attributed to already service-connected right carpal tunnel syndrome. Although cervical adenopathy was noted in August 1988, the Board observes that adenopathy is defined as an “enlargement of a lymph node.” See Dorland’s Illustrated Medical Dictionary, 30. (30th ed. 2003). Service treatment records also include a complaint of back pain while playing soccer and landing on his back in December 1986, but no complaints pertaining to the neck or upper extremities were recorded. In addition, the Veteran’s neck, upper extremities, neurologic system, and spine were examined and found to be essentially normal during his November 1989 retirement physical examination. The Veteran was found to be qualified for full duty. On the accompanying Report of Medical History, the Veteran reported that he was in good health. He denied having or having had a head injury, broken bones, arthritis, rheumatism, or bursitis, bone, joint, or other deformity, lameness, neuritis, or paralysis. He did, however, endorse, inter alia, sinusitis, high blood pressure, and frequent trouble sleeping. While it does not appear to be contended that the Veteran had neck or radicular pain during service or at separation, the Board finds that had he indeed been suffering from chronic neck pain during service or at separation, he would have reported it while seeking treatment in December 1986 for his back or during the November 1989 retirement examination or on the accompanying Report of Medical History when he reported other complaints. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803 (7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Based on the foregoing, the Board finds that a chronic cervical spine disability or a chronic upper extremity disability was not noted during active duty, nor is there any indication of such disabilities within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The post-service record on appeal shows that the Veteran was assessed with, inter alia, cervicalgia and cervical radiculopathy in August 2013. A private clinician opined that it was highly likely that the Veteran’s cervical and lumbar disc generation and spondylosis were related to his military service and were progressive and chronic in nature. However, this opinion is not probative, as it is both conclusory in nature and also does not appear to be based on anything more than lay history provided by the Veteran. Indeed, there is no indication that any service treatment records were reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); LeShore v. Brown, Vet. App. 406, 409 (1995). In October 2016, the Veteran contended that his cervical spine disability and cervical radiculopathy may have been related to his service-connected carpal tunnel syndrome. His statement could also be read as indicating a belief that the pain, tingling, and numbness he felt in his lower arm was the result of his service-connected carpal tunnel syndrome. In any event, there is no indication that the Veteran’s cervical spine disability or bilateral upper extremity radiculopathy was caused or aggravated by service-connected right carpal tunnel syndrome. Symptoms and functional impairment caused by right carpal tunnel syndrome were considered in the rating assigned for that particular service-connected disability prior to the Veteran’s death. The issue of entitlement to an increased rating for right carpal tunnel syndrome is not before the Board. In the October 2016 statement, the Veteran also contended that his bilateral upper extremity radiculopathy was the result of exposure to herbicide agents including Agent Orange. The Veteran was not competent to opine as to the etiology of his disabilities because there is no adequate foundation in the current record to establish that he had the education, training, or clinical experience to diagnose disorders or offer a medical nexus opinion relative to the cause of such. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In August 2020, the appellant’s attorney argued that the Veteran’s cervical spine disability could be connected to service-connected degenerative joint disease. It was also argued that Agent Orange causes nerve damage and radiculopathy is nerve damage; thus, radiculopathy should be granted as secondary to exposure to Agent Orange. To the extent that the appellant’s attorney is suggesting that degenerative joint disease in one part of the body may spread to another, the attorney is not competent to provide an etiological opinion because there is no adequate foundation in the current record to establish that either has the education, training, or clinical experience to diagnose disorders or offer a medical nexus opinion relative to the cause of such. Layno, supra. To the extent that the attorney is contending that service connection was in effect for degenerative joint disease generally, and that service connection for degenerative joint disease (arthritis) of the cervical spine should thus be granted, service connection was only awarded for degenerative joint disease of the lumbar spine and the record contains no indication that the degenerative joint disease of the lumbar spine caused or aggravated the cervical spine disability. Additionally, the appellant is not competent to provide an etiological opinion because there is no adequate foundation in the current record to establish that she has the education, training, or clinical experience to diagnose disorders or offer a medical nexus opinion relative to the cause of such. Layno, supra. The appellant and her attorney have not presented any competent evidence regarding their lay theories of causation which would provide an indication that the claimed disabilities may be associated with an established event, injury, or disease in service, including presumed exposure to herbicide agents, or a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Rather, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that VA medical opinions regarding service connection are not necessary to decide the claims. Rather, there is sufficient medical evidence upon which to base a decision. See Locklear v. Nicholson, 20 Vet. App. 410 (2006). With respect to the Veteran’s diagnosed upper extremity radiculopathy, the Board also notes that there is no indication, nor is it contended, that the Veteran had upper extremity peripheral neuropathy, early-onset or otherwise. As such, service connection based on conceded exposure to herbicide agents on a presumptive basis is not warranted. 38 C.F.R. § 3.309(e). Further, although radiculopathy may be an other organic disease of the nervous system, there is no indication or contention that such had manifest in service or to a compensable degree within one year of separation. Thus, service connection for a chronic disability on a presumptive basis is also not warranted. 38 C.F.R. § 3.309(a). Finally, there is no indication, nor is it contended, that the Veteran had diabetic peripheral neuropathy. As such, service connection secondary to service-connected diabetes mellitus type II is not warranted. 38 C.F.R. § 3.310. Rather, the competent evidence of record establishes that the Veteran’s upper extremity radicular/neurologic symptoms (those attributable to service-connected right carpal tunnel syndrome notwithstanding) were causally related to his cervical spine disability. Indeed, such were consistently diagnosed as cervical radiculopathy. For example, during a July 2013 clinical visit, the Veteran himself described his neck pain radiating to his right arm. He was assessed with cervical radiculopathy. In sum, the most probative evidence establishes that a cervical spine disability and right and left upper extremity radiculopathy were not present in service, did not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current disabilities were not otherwise etiologically related to an in-service injury or disease, to include presumed exposure to herbicide agents, or caused or aggravated by a service-connected disability. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for acute myeloid leukemia, for purposes of substitution, is remanded. 2. Entitlement to service connection for the cause of the Veteran’s death is remanded. A November 2017 letter from Dr. R.B., a U.S. Air Force Staff Physician, Hematology/Oncology, who had treated the Veteran for acute myeloid leukemia, states that acute myeloid leukemia has been associated with exposure to Agent Orange and that VA recognizes the potential causative link between Agent Orange and hematologic malignancies such as acute myeloid leukemia. Received in June 2018 was an August 2007 article from Volume 82, Issue 9, of the American Journal of Hematology entitled: “Benzene-induced acute myeloid leukemia: A clinician’s perspective.” The article states that acute myeloid leukemia is the only human neoplasm proven to be potentially caused by benzene, which actually is an obsolete form of chemotherapy. The article also states that it is difficult to distinguish between acute myeloid leukemia and the benzene-induced variety. Also of record is an August 2018 opinion of Dr. N.D., Associate Professor, Leukemia Department, who treated the Veteran beginning in July 2017 for myelodysplastic syndrome. Dr. N.D. reviewed the Veteran’s service treatment records and his medical records since separation, and opined that the Veteran’s symptoms were related to an onset or events while in military service and that such was possibly related to exposure to Agent Orange. These opinions are speculative in nature and, as such, are insufficient to grant the benefit sought. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. N.D.’s opinion was received in November 2018, along with a report of the International Agency for Research on Cancer (IARC) regarding Benzene (Group 1). This report, last updated in February 1998, discusses a cohort study which found an excess of acute myeloid leukemia among refinery workers, although such had not worked in jobs identified as having the highest benzene exposure. A VA medical opinion regarding the cause of the Veteran’s death was obtained in January 2019. Following review of the claims file, the VA physician opined that it was less likely than not that the Veteran’s hypertension caused or aggravated acute leukemia. The examiner explained that acute myeloid leukemia is a cancer of the blood and bone marrow and occurs when the DNA of developing cells in bone marrow are damaged. In most cases, it is not clear what causes the DNA mutations. However, risk factors include increasing age, male sex, history of previous cancer treatment, exposure to high levels of radiation, smoking, other blood disorder, or other genetic disorders. There was no medical evidence that the Veteran’s service-connected hypertension contributed substantially or materially to his death, combined to cause his death, aided or lent assistance to the production of death, resulted in debilitation effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effect of other disease or injury primarily causing death, or was of such severity as to have a material influence in accelerating death. A contracted medical opinion regarding acute myeloid leukemia was obtained in August 2020. The contracted physician opined that it was less likely than not that the appellant’s fatal acute myeloid leukemia was caused by presumed exposure to herbicide agents including Agent Orange because this physician’s review of medical literature found no evidence to support the proposition that acute myeloid leukemia was caused by Agent Orange. Although there was some evidence of Agent Orange being linked to acute myeloid leukemia in children of veterans in a June 2001 Lancet publication, such was recanted by Lancet in April 2002. The examiner concluded that, from a principled scientific approach, with no evidence to support acute myeloid leukemia being caused by Agent Orange, any positive association would only be speculative in nature. This medical opinion is inadequate. The contracted physician did not address the significance, if any, of the August 2007 article which suggests that there is evidence of a possible association between benzene, an ingredient in Agent Orange, and acute myeloid leukemia. The significance, if any, of the 1998 IARC report also was not addressed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Further, since the January 2019 medical opinion regarding the cause of the Veteran’s death was issued, service connection has been granted, on a substitution basis, for additional disabilities. Indeed, at the time of the Veteran’s death, service connection was in effect for: hypertension with diabetic nephropathy, obstructive sleep apnea, urinary tract including bladder and urethra, diabetes mellitus type II, hemorrhoids, degenerative joint disease of the lumbar spine with bilateral lower extremity radiculopathy, atherosclerotic heart disease, constipation, and right carpal tunnel syndrome. Thus, the Board finds that a new medical opinion should be obtained which addresses: (1) the nature and etiology of the Veteran’s myelodysplastic syndrome which developed into acute myeloid leukemia, and (b) the cause of the Veteran’s death, particularly whether any other service-connected disability or disabilities contributed substantially or materially to cause death, or aided or lent assistance to production of death. The matters are REMANDED for the following action: Obtain an addendum medical opinion(s) from an appropriate clinician(s) which addresses the nature and etiology of the Veteran’s myelodysplastic syndrome which developed into acute myeloid leukemia and was the cause of his death. The claims file must be made available to the clinician(s) rendering the requested opinion(s). Following review of the claims file, the clinician(s) should opine as to the following: (a) Is it at least as likely as not that the Veteran’s myelodysplastic syndrome and/or acute myeloid leukemia had its inception during his period of active service or is otherwise causally related to an in-service disease or injury, to include presumed exposure to herbicide agents? The clinician’s attention is directed to the following: (a) the November 2017 letter from Dr. R.B.; (b) the August 2018 opinion of Dr. N.D.; (c) the February 1998 IARC report regarding Benzene, received by VA in June 2018; (d) the August 2007 article from Volume 82, Issue 9, of the American Journal of Hematology entitled: “Benzene-induced acute myeloid leukemia: A clinician’s perspective,” received by VA in June 2018; (e) the January 2019 VA medical opinion regarding the cause of the Veteran’s death; and (f) the August 2020 contracted opinion. (b) Is it at least as likely as not that the Veteran’s service-connected disabilities (singly or jointly) caused his death; contributed substantially or materially to cause death; or aided or lent assistance to production of death? At the time of the Veteran’s death, service connection was in effect for: (a) hypertension; (b) diabetic nephropathy; (c) obstructive sleep apnea; (d) urinary tract including bladder and urethra; (e) diabetes mellitus type II; (f) hemorrhoids; (g) right lower extremity radiculopathy; (h) left lower extremity radiculopathy; (i) lumbar spine degenerative joint disease; (j) atherosclerotic heart disease; (k) constipation; and (l) right carpal tunnel syndrome. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the clinician should reference any relevant evidence of record. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.