Citation Nr: 21020730 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 11-08 255 DATE: April 8, 2021 ORDER Entitlement to service connection for hypertension as aggravated by service-connected disabilities is granted Entitlement to service connection for skin neoplasms, to include as due to exposure to herbicide agents, is denied. REMANDED Entitlement to service connection for renal disease, to include as due to exposure to herbicidal agents, or as secondary to service-connected ischemic heart disease and/or diabetes mellitus is remanded. Entitlement to an initial rating in excess of 30 percent prior to November 5, 2020, and in excess of 50 percent thereafter for service-connected posttraumatic stress disorder with depression (PTSD) is remanded. Entitlement to an initial rating in excess of 10 percent prior to September 11, 2019, and in excess of 40 percent thereafter, for service-connected peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent prior to September 11, 2019, and in excess of 40 percent thereafter, for service-connected peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected peripheral neuropathy of the right upper extremity is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected peripheral neuropathy of the left upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 5, 2008. FINDINGS OF FACT 1. The evidence of record is, at the very least, in equipoise as to whether the Veteran’s hypertension is aggravated by his service-connected PTSD, coronary artery disease (CAD), and diabetes mellitus. 2. The preponderance of the evidence is against a finding that the Veteran’s skin neoplasms are due to his military service, to include his conceded in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for service connection for hypertension as aggravated by service-connected PTSD, CAD, and diabetes mellitus are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for service connection for skin neoplasms, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1116, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to June 1969, with subsequent service in the United States Army Reserves. As noted in the July 2013 and August 2017 remands, the issues of entitlement to service connection for sciatica and a knee disorder, to include avascular necrosis, claimed as secondary to service-connected disabilities have been raised by the record, but have still not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are once again referred to the AOJ for appropriate action. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. A. Hypertension The Veteran claims entitlement to service connection for hypertension on a direct basis and as secondary to his service-connected CAD, diabetes mellitus, and PTSD. In accordance with the Board’s August 2017 remand, VA medical opinions were obtained in October 2019 that addressed whether the Veteran’s hypertension was directly related to his military service, to include his exposure to herbicide agents, and/or whether such is secondary to his service-connected disabilities. Although the VA examiner provided negative opinions as to whether the Veteran’s hypertension was caused by his military service or his service-connected disabilities, the examiner opined that his hypertension was aggravated beyond its nature progression by his service-connected CAD, PTSD, and diabetes mellitus. The examiner noted that CAD and hypertension were essentially linked, and that a common goal of treatment in CAD is reducing the level of blood pressures. The examiner went on to note that elevated blood pressures were considered the most modifiable risk factors for cardiovascular disease. Citing to a medical article, the examiner went on to note that hypertension was often more difficult to control in patients with diabetes, and that it often required more medication to achieve target blood pressure goals. The examiner stated that a quantitative analysis could not be provided, but that it was likely that the Veteran’s service-connected disabilities aggravated his hypertension. Upon review of the record, which includes the medical opinions both for and against the claims described above, the Board finds that the evidence is, at the very least, in relative equipoise as to whether the Veteran’s hypertension is aggravated by his service-connected CAD, PTSD, and diabetes mellitus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Skin Neoplasms The Veteran claims entitlement to service connection for skin neoplasms, to include seborrheic keratosis and melanocytic nevus, as a result of his presumed exposure to herbicide agents, including Agent Orange and Agent Blue, as a result of his service in the Republic of Vietnam. Thus, the question for the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service injury, event, or disease. Initially, the Veteran’s exposure to herbicide agents, including Agent Orange and Agent Blue, has been established based on his personnel records showing that he served in Vietnam from at least June 1968 to May 1969; thus, he is presumed to have been exposed to herbicide agents, including Agent Orange and Agent Blue. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Furthermore, in September 2019, the Veteran underwent a VA examination, and the examiner noted his history of seborrheic keratosis and melanocytic nevus. Nevertheless, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran’s skin neoplasms, including seborrheic keratosis and melanocytic nevus, are related to his military service, to include his exposure to herbicide agents while serving in the Republic of Vietnam. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases listed in 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 U.S.C. § 1116 and 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 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). While chloracne or other acneform diseases consistent with chloracne are listed as being presumptively associated with exposure to herbicide agents, skin neoplasms are not listed as diseases presumptively associated with exposure to herbicide agents. As such, the Board cannot award service connection for the Veteran’s skin neoplasms on a presumptive basis. That stated, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection on a direct basis for a disease claimed to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). However, there is no evidence of record other than the Veteran’s own lay assertions indicating that his current disability may be associated with military service, to include herbicide exposure. Indeed, none of the post-service medical treatment records reflect any such opinion or comment to that effect, and he has not intimated that any such evidence or opinion exists. The Veteran has not asserted that his seborrheic keratosis and/or melanocytic nevus began during service within one post-service year, nor has he submitted any medical evidence suggesting his currently-diagnosed conditions may otherwise be related to his herbicide exposure. The Veteran’s service treatment records also do not include any complaints of, treatment for, or diagnoses of skin neoplasms, including seborrheic keratosis and/or melanocytic nevus. In a May 2013 appellate brief, the Veteran’s representative cited medical treatise evidence showing that Agent Blue (a herbicide used in the Republic of Vietnam) contained arsenic and was known to affect the skin. In August 2015, the Veteran underwent a VA examination, and he was diagnosed with seborrheic keratosis. Ultimately, the examiner opined that his seborrheic keratosis was less likely than not related to the Veteran’s exposure to herbicidal agents, including Agent Blue, while serving in the Republic of Vietnam. The examiner noted that seborrheic keratosis was a very common benign condition; however, no further rationale was provided. In accordance with the Board’s August 2017 remand, the Veteran underwent another VA examination in September 2019, and the examiner confirmed his diagnoses of seborrheic keratosis and melanocytic nevus. After noting the Veteran’s service in the Republic of Vietnam, the examiner ultimately concluded that his skin neoplasms were less likely than not related to his military service, to include his presumed exposure to herbicide agents in general, and/or his exposure to arsenic from Agent Blue. The examiner noted that research had found it unlikely that seborrheic dermatitis was associated with Agent Orange exposure. Regarding Agent Blue, the examiner noted that there was no formal research supporting a causal relationship between seborrheic keratosis and Agent Blue. The examiner further noted that components of Agent Blue were known to irritate the skin, and that repeated exposure to arsenic led to the accumulation of arsenic in tissue, such as skin, hair, and nails, resulting in various clinical symptoms such as hyperpigmentation and keratosis; however, the examiner noted that it was undefined how much exposure would cause these symptoms. The examiner went on to note that the American Academy of Dermatology stated that seborrheic keratoses were common, and that most people developed growths as they aged. The examiner further noted that the cause of seborrheic dermatitis was thought to result from a combination of three factors: sebaceous glad secretion, presence of Malassezia yeast, and the host immune response. The examiner went on to note that the Veteran was not diagnosed until more than three decades following his military service, that there was no evidence to support a diagnosis of seborrheic keratosis during service, and that his in-service treatment for boils was not related to his current seborrheic keratosis; thus, the examiner concluded that his seborrheic keratosis was likely age related. The Board also finds that the September 2019 VA medical opinion is the most probative evidence of record addressing whether the Veteran’s skin neoplasms are related to his military service, to include his presumed in-service exposure to herbicide agents. Significantly, the opinion is probative because is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion clearly reflects consideration of the Veteran’s theory of entitlement; however, citing to pertinent medical research, the examiner concluded that his skin neoplasms were less likely than not related to his military service, to include his presumed exposure to herbicide agents, including both Agent Orange and Agent Blue. Rather, the examiner concluded that such were likely age-related. The Veteran has had numerous opportunities to submit probative medical evidence in support his claim, including a competent medical opinion that relates his skin neoplasms to his presumed exposure to herbicide agents, but he has not done so. Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of whether the Veteran’s skin problems are related to his military service is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Specifically, the causation of the Veteran’s skin neoplasms involves medical subjects concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of his skin neoplasms, to include whether such is related to his presumed exposure to herbicides. Therefore, the Board finds that service connection for skin neoplasms, to include as due to exposure to herbicide agents, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, the preponderance of the evidence is against the Veteran’s claim for this disability. As such, that doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Renal Disease In the August 2017 remand, the Board determined that a remand of the Veteran’s claim for service connection for renal disease was necessary because an August 2015 VA medical opinion was insufficient to adjudicate the Veteran’s claim because the examiner merely noted that the Veteran’s proteinuria and urinary tract infections had resolved and, thus, did not provide an opinion as to whether such were related to his military service or secondary to his service-connected disabilities. The Veteran underwent a VA examination in September 2019. The examiner noted that the Veteran was diagnosed with proteinuria and a urinary tract infection in 2008, but that both had since resolved. The examiner then opined that it was less likely than not the Veteran’s now-resolved urinary tract infection and proteinuria identified in 2008 were indicative of an underlying renal disability. The examiner went on to say that protein in urine was a common finding, and that there were many causes other than renal dysfunction caused by diabetes. The examiner went on to note that he also experienced hepatitis that could have caused the proteinuria, and that a true etiology could not be definitely stated. The examiner went on to note that there was no medical literature linking herbicide agents to proteinuria. The examiner concluded that it was less likely than not that any renal disorder existing since July 2006 had its onset during, or was otherwise related to, the Veteran’s active duty service, to include his presumed exposure to herbicide agents. The examiner then opined that it was less likely than not that the Veteran’s proteinuria and urinary tract infections were caused by his service-connected disabilities, to include the medications he took for those disabilities. The examiner noted that the Veteran had long-standing diabetes prior to his proteinuria, and that urinary tract infections were common for people with diabetes; however, the examiner noted that diabetes was not an absolute causative factor. After noting the risk factors for urinary tract infections, including diabetes, catheter use, and antibiotic use, the examiner noted that the general population without these problems also developed urinary tract infections. The examiner also noted that, while diabetes could cause protein in urine, so could hepatitis which the Veteran also had. The examiner concluded that a true determination of the cause of the protein in the Veteran’s urine could not be made. Later, the examiner stated that the true etiology of the protein in the Veteran’s urine could not be definitely stated. The examiner then opined that the Veteran’s service-connected disabilities did not aggravate his proteinuria based on urinalysis results from March 2007, November 2007, and June 2015; however, no opinion was offered as to whether the Veteran’s urinary tract infection was aggravated beyond its natural progression by his service-connected disabilities. Unfortunately, the Board finds that the September 2019 opinion is insufficient to adjudicate the Veteran’s claim. First, the Board notes that the examiner’s rationale supporting her direct service connection opinion only addresses whether the Veteran’s proteinuria is directly related to his military service, to include his presumed exposure to herbicide agents. The examiner did not provide any supporting rationale as to why his urinary tract infection was not related to his military service. Furthermore, although the examiner acknowledged a possible relationship between diabetes mellitus and proteinuria and urinary tract infections, the examiner also indicated that the Veteran’s nonservice-connected hepatitis could have played a role in the development of his proteinuria, that the true etiology of the protein in the Veteran’s urine could not be definitely stated, and that urinary tract infections were common in the general population. This conclusion seemingly misstates the applicable evidentiary standard, as the etiology of the Veteran’s proteinuria does not need to be definitely established; instead, only a 50 percent probability need be demonstrated. Furthermore, the examiner failed to provide a supporting rationale as to why the Veteran’s other risk factors (hepatitis and being a member of the general population) were more likely the cause of his proteinuria and urinary tract infection. Finally, although the examiner concluded that the Veteran’s proteinuria was not aggravated beyond its natural progression, the examiner did not address whether his urinary tract infection was aggravated beyond is natural progression by his service-connected disabilities. Because the September 2019 opinion does not adequately address the issues raised in connection with the Veteran’s claim for service connection for a renal disease, to include proteinuria and urinary tract infection, an addendum opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. PTSD Unfortunately, there appears to be outstanding VA treatment records that may be pertinent to the Veteran’s claim for a higher initial rating for his service-connected PTSD. Specifically, a September 2006 VA treatment record from the Asheville VA Medical Center noted that the Veteran was referred to the Greenville Vet Center for PTSD-related services. In an April 2009 statement, the Veteran indicated that he received treatment at a VA clinic in Greenville. After careful review of the Veteran’s claims file, the Board notes that no Vet Center records are associated with the claims file. The United States Court of Appeals for Veterans Claims has indicated that Vet Center records are essentially VA records. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, to ensure an adequate record upon which to decide the Veteran’s claim for a higher initial rating for his service-connected PTSD, the Board finds that a remand is once again necessary. 3. Peripheral Neuropathy The most recent VA examination to assess the nature and severity of the Veteran’s service-connected peripheral neuropathy of the upper and lower extremities was in September 2019, at which time the examiner noted that muscle strength testing in all four extremities was normal except for active movement against some resistance in knee extension. Subsequently, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, wherein the Veteran’s treatment provider indicated that he experienced weakness in the arms, hands, legs, and feet due to neuropathy. The examiner indicated that the Veteran had problems walking and carrying a plate or cup; that he was unable to stand up straight; that he experienced tremors in his hands, and that he fell frequently. The examiner went on to note that the Veteran would lose feeling in his arms and hands, and that he had pain throughout his entire body. In order to ascertain the current nature and severity of the Veteran’s service-connected peripheral neuropathy of the upper and lower extremities, the Board finds that a more contemporaneous examination is once again needed. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. TDIU In November 2007, the Veteran filed a formal claim for a TDIU, alleging that he was unemployable since 2004 as a result of his service-connected disabilities, including his PTSD. See November 2007VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Because entitlement to a TDIU was raised in connection with his claim for a higher initial rating for his service-connected PTSD, the Board finds that his claim for a TDIU is part and parcel of his claim for a higher initial rating which is on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Given the contentions, the Veteran’s claim for a TDIU is inextricably intertwined with his claim for a higher initial rating for his service-connected PTSD. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, adjudication of the Veteran’s claim for a TDIU will be deferred at this time. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following action: 1. Take all appropriate steps to obtain the Veteran’s records of care from the Greenville, South Carolina Vet Center. See September 14, 2006 VA Mental Health Consultation (noting that the Veteran was referred to the Greenville Vet Center for PTSD-related services). If authorizations are needed from the Veteran to request such records, such should be requested. 2. Associate any VA treatment records dated after November 6, 2020, with the Veteran’s claims file. 3. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 4. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and she must be allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. After obtaining all outstanding records, return the claims file to the examiner who conducted the September 2019 VA examination, if available. The record and a copy of this Remand must be made available to the examiner. If the September 2019 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the entire record, the examiner should address the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any renal disorder/disease existing since July 2006, to include the Veteran’s urinary tract infection and proteinuria identified in 2008 (even if resolved), had its onset during, or is otherwise related to, his active duty service, to include his presumed exposure to herbicide agents in general, and exposure to arsenic from Agent Blue in particular, while serving in the Republic of Vietnam? b) Furthermore, is it at least as likely as not (i.e., a 50 percent or greater probability) that any renal disorder/disease existing since July 2006, to include proteinuria or a urinary tract infection, was caused by or aggravated beyond its natural progression by his service-connected CAD and/or diabetes mellitus, to include the medications he takes for such? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. A clearly-stated rationale for any opinion offered must be provided. 6. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected peripheral neuropathy of the bilateral upper and bilateral lower extremities. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of his service-connected peripheral neuropathy of the bilateral upper and bilateral lower extremities. With regard to the lower extremities, the examiner should indicate whether there is complete or incomplete paralysis of the affected nerve and, if so, the examiner should describe the severity of the impairment as mild, moderate, moderately severe, or severe with marked muscular atrophy. With regard to the Veteran’s upper extremities, the examiner should indicate whether there is complete or incomplete paralysis of the affected nerve and, if so, the examiner should describe the severity of the impairment as mild, moderate, or severe. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 7. Thereafter, and after any further development deemed necessary, readjudicate the issues on appeal, to include entitlement to a TDIU prior to May 5, 2008. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.