Citation Nr: 21023713 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-51 824 DATE: April 21, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for bilateral lung disability is denied. Entitlement to service connection for degenerative arthritis of the cervical spine is granted. Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Entitlement to service connection for bilateral upper extremity cervical radiculopathy is granted. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a bilateral eye disability, to include as secondary to service-connected hypertension is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current hypertension is related to service. 2. A bilateral lung disability is not related to service. 3. The evidence is at least evenly balanced as to whether the Veteran’s current cervical spine disability is related to service. 4. The evidence is at least evenly balanced as to whether the Veteran’s current lumbar spine disability is related to service. 5. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral upper extremity disability is related to service. 6. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral lower extremity disability is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral lung condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for degenerative arthritis of the cervical spine have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for bilateral upper extremity cervical radiculopathy have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to February 1973, including service in Vietnam. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In January 2020, the Board remanded the matter for further evidentiary development. While in remand status, in a September 2020 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating effective June 12, 2015. The RO also granted service connection for erectile dysfunction as secondary to service-connected PTSD and assigned a noncompensable rating effective June 12, 2015. The grant of service connection for PTSD and erectile dysfunction constitutes a full award of the benefits sought on appeal with respect to those claims. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record contains no indication that the Veteran initiated an appeal with the initial rating or effective date assigned for PTSD and erectile dysfunction. Thus, those matters are not in appellate status. In response to the Board’s January 2020 remand, examinations were conducted for hypertension, bilateral eye condition, bilateral lung condition, bilateral upper extremities, bilateral lower extremities, and skeletal arthritis disabilities. As shown in the discussion below with regard to the claim being denied, the examination was adequate and therefore complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Lastly, in light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for skeletal arthritis as claims of service connection for cervical spine disability, and lumbar spine disability. Also, the claims of service connection for peripheral neuropathy of bilateral upper extremities, and peripheral neuropathy of bilateral lower extremities has been recharacterized as bilateral upper extremity radiculopathy, and bilateral lower extremity radiculopathy. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Hypertension The Veteran is presumed to have been exposed to an herbicide agent. In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e). Hypertension is not among the diseases listed in § 3.309 for which presumptive service connection is available based on inservice herbicide agent exposure. See 38 C.F.R. § 3.309 (e). Although hypertension has been moved from the limited or suggestive category to the category of sufficient evidence of an association, see Veterans and Agent Orange: Update 11 (2018), it has not yet been added to the list of diseases presumed service connected in veterans exposed to herbicide agents. Thus, entitlement must be shown on an actual causation basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). For VA rating purposes, hypertension means that diastolic blood pressure is predominately 90 mm. or greater; isolated systolic hypertension means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. A 10 percent disability rating is warranted when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. The evidence of record reflects a diagnosis of hypertension. Specifically, a February 2020 VA examination reports shows a diagnosis of hypertension. Consequently, the first element of service connection has been met. The Veteran’s service treatment records (STRs) do not reveal a diagnosis of hypertension. At his September 2019 Board hearing, the Veteran testified that he was having blood pressure problems in service, but he did not go to sick bay for treatment. The Veteran stated that he had high blood pressure for a few years but did not seek treatment right away. He noted that when he sought treatment after service and was prescribed medication. The Veteran further noted that he has continuously taken medication since service. In February 2020, a VA examiner opined that the Veteran’s hypertension was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran did not have an issue with hypertension prior to military service. Although onset of condition was post service, the Veteran is proven to have been exposed to herbicides or Agent Orange while in service and on medication for over 20 years for treatment of hypertension. The examiner further explained that there is evidence of current, chronic and continuous treatment and care, thus a nexus has been established. In an October 2020 VA addendum medical opinion, the examiner opined that the Veteran’s hypertension was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while recent studies have shown an association with hypertension and veterans assigned to the Chemical corps who had a high exposure to herbicides, there was no association with veterans with other military occupational specialty (MOS). The examiner further explained that the prospect of exposure to TCDD from Agent Orange in ground troops in Vietnam seems unlikely in light of the environmental dissipation of TCDD, little bioavailability, and the properties of the herbicides and circumstances of application that occurred. Photochemical degradation of TCDD and limited bioavailability of any residual TCDD present in soil or on vegetation suggest that dioxin concentrations in ground troops who served in Vietnam would have been small and indistinguishable from background levels even if they had been in recently treated areas. Laboratory and field data reported in the literature provide compelling evidence on the fate and dislodge-ability of herbicide and TCDD in the environment. The examiner noted the evidence of the environmental fate and poor bioavailability of TCDD from Agent Orange is consistent with the observation of little or no exposure in the veterans who served in Vietnam. Appreciable accumulation of TCDD in veterans would have required repeated long-term direct skin contact of the type experienced by United States (US) Air Force Ranch Hand and US Army Chemical Corps personnel who handled or otherwise had direct contact with liquid herbicide, not from incidental exposure under field conditions where Agent Orange had been sprayed. The Veteran’s MOS was neither. In this case, the evidence of record includes conflicting opinions from the February 2020 VA examiner and October 2020 VA examiner as to the etiology of the Veteran's hypertension. Both the February 2020 VA examiner and October 2020 VA examiner provided a thorough rationale for the basis of their medical opinions. Thus, the Board can find no basis upon which to assign greater probative weight to either medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her 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 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for hypertension. Thus, the Board finds that service connection for hypertension is warranted. 2. Bilateral Lung Disability The Veteran’s STRs are negative of complaints, treatment, or diagnosis of a bilateral lung condition. Post-service clinical records are similarly negative for a bilateral lung condition. At his September 2019 Board hearing, the Veteran testified that aboard ship, he started experiencing shortness of breath because of his lungs. He indicated that breathing was more difficult below the water line and depending on the heat in the South Pacific. The Veteran noted that he did not have breathing problems prior to service and has continuously received treatment for breathing problems since service. In support of his claim, the Veteran was afforded a VA examination in February 2020. He reported that his condition of sleep apnea began in the 1980s and he sought medical attention early on in the 1980s as well. He stated that his condition has stayed the same. The Veteran indicated that he is treating the condition with CPAP therapy, and his symptoms include snoring, restlessness, trouble falling asleep, and gasping for breath. The Veteran denied any other respiratory disorders at present. The examiner determined the Veteran did not have a diagnosed respiratory condition. The examiner opined that the claimed bilateral lung condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had no objective findings of having a bilateral lung condition as lungs were clear on auscultation. The examiner further explained that there was mention of Veteran having shortness of breath on pages 261 and 291 of claims file in reference to chest pain, not a lung condition. Here, the evidence of record does not demonstrate that the Veteran has a disability related to the lungs, as opposed to symptoms of the already service-connected obstructive sleep apnea. The Court has consistently held that service connection cannot be awarded in the absence of a current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (citing Brammer v. Derwinski, 3 Vet. App. 223 (1992), and Rabideau v. Derwinski, 2 Vet. App. 141 (1992)) aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the support requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). While disability does not require a diagnosis, and symptoms causing impairment in earning capacity can constitute disability, Saunders, 886 F.3d at 1364-65, the probative medical evidence of record has attributed the breathing symptoms to the already service-connected sleep apnea rather than the lungs. In addition, to the extent that the Veteran asserts that he has a bilateral lung disability related to service, a lay witness is competent to testify as to their observations including simple medical matters. The Veteran, is not, however, competent to opine on complex medical matters such as the etiology of respiratory disorders, which is an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). To the extent his statements are competent, the Board finds the specific reasoned opinions of the February 2020 VA examiner to be of greater probative weight than the more general lay assertions of the Veteran. For the reasons and bases set forth above, the weight of the evidence is against the claim of service connection for bilateral lung disability. Although the Board has considered the benefit of the doubt rule, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Cervical Spine and Lumbar Spine In this case, the evidence of record indicates that the Veteran has current cervical spine and lumbar spine disabilities. Specifically, February 2020 VA examination reports shows diagnoses of degenerative arthritis of the cervical spine, and degenerative arthritis of the lumbar spine. Thus, the first element of service connection has been met with regard to each claim. The Veteran’s STRs are negative of complaints, treatment, or diagnosis of cervical spine and lumbar spine disabilities. At his September 2019 Board hearing, the Veteran testified that he started having arthritis problems during his second deployment while serving as a forward engine room machine mate aboard ship. He experienced numbness, tingling, and burning in service, and has continued to experience such symptoms since service. He indicated that he told others of his arthritis problems during service but did not go to sick bay. The Veteran noted that he sought treatment for arthritis after leaving service and takes medication twice a day. He further noted that he has experienced arthritis symptoms in and since service. The Veteran's Form DD-214 confirms the he is in receipt of the Combat Action Ribbon for his service in Vietnam and that his military occupational specialty was electricians. Thus, the evidence shows that the Veteran engaged in combat with the enemy. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use satisfactory lay or other evidence to establish that he was injured or incurred a disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran's statements that he experienced arthritis symptoms in service. Moreover, the fact that the claimed cause of the Veteran’s cervical spine and lumbar spine disabilities, are therefore established by his statements, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disabilities themselves while in service. Reeves, 682 F.3d at 999. At his February 2020 VA examination, the examiner opined that Veteran’s skeletal arthritis was likely than not that incurred in or caused the claimed in-service injury, event, or illness. The examiner explained the STRs are silent for complaints of skeletal arthritis while in service. The examiner noted the objective exam shows some limitation in ROM, as well as degenerative arthritis of the cervical and lumbar spine, but nothing to support a diagnosis of skeletal arthritis incurred in or caused by (the) experienced numbness, tingling and burning in joints while in service during service. The examiner, however, concluded that the diagnosis of degenerative arthritis of lumbar and cervical spine could produce the aforementioned symptoms. Although the VA examiner provided a negative opinion for skeletal arthritis, however, reading the opinion as a whole and in the context of the evidence of record, it reasonable to infer from the from the VA examiner’s comments that the Veteran’s in-service symptoms of arthritis, numbness, tingling and burning in joints are related to the Veteran’s currently diagnosed degenerative arthritis of lumbar and cervical spine. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For the foregoing reasons, the Board finds that the nexus evidence for arthritis of lumbar and cervical spine is approximately evenly balanced. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cervical spine and lumbar spine disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 4. Bilateral Upper Extremity and Bilateral Lower Extremity In this case, the evidence of record indicates that the Veteran has current bilateral upper extremity and bilateral lower extremity disabilities. Specifically, a February 2020 VA examination reports shows diagnoses of bilateral upper extremity cervical radiculopathy and bilateral lower extremity radiculopathy of sciatic nerve. Thus, the first element of service connection has been met with regard to each claim. The Veteran’s STRs are negative of complaints, treatment, or diagnosis of the bilateral upper extremity and bilateral lower extremity disabilities. At his September 2019 Board hearing, the Veteran testified that he experienced upper and lower extremity numbness, tingling, and burning in service, and has continued to experience such symptoms since service. As set forth above, the finding that the Veteran engaged in combat is significant because it allows a combat veteran to use satisfactory lay or other evidence to establish that he was injured or incurred a disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran's statements that his bilateral upper extremity and lower extremity symptoms had their onset in service. Moreover, the fact that the claimed cause of the Veteran's upper extremities and lower extremities disabilities, are therefore established by his statements, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. At his February 2020 VA examination, the examiner opined that peripheral neuropathy of bilateral upper extremity and bilateral lower extremity conditions were less likely than not that incurred in or caused the claimed in-service injury, event, or illness. The examiner explained that there were no objective findings to support the claims of peripheral neuropathy. The examiner, however, concluded that there is objective evidence of bilateral upper extremity cervical radiculopathy and bilateral lower extremity radiculopathy, as evidenced on the back and neck Disability Benefits Questionnaire (DBQ), which would have the symptoms of numbness, tingling, and burning in joints the Veteran experienced during service. Although the VA examiner provided a negative opinion for peripheral neuropathy, however, reading the opinion as a whole and in the context of the evidence of record, it reasonable to infer from the from the VA examiner’s comments that the Veteran’s in-service symptoms of numbness, tingling and burning in joints are related to the Veteran’s currently diagnosed bilateral upper extremity cervical radiculopathy and bilateral lower extremity radiculopathy. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For the foregoing reasons, the Board finds that the nexus evidence for radiculopathy of bilateral upper and bilateral lower extremity are in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral upper extremity cervical radiculopathy and bilateral lower extremity radiculopathy is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 REMAND 1. Bilateral Eye Disability The Veteran contends that his bilateral eye condition is due to his military service. In an alternative theory, he contends that his bilateral eye condition is secondary to his hypertension. In February 2020, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s bilateral eye condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner also opined that the Veteran’s bilateral eye condition is less likely than not proximately due to or the result of service-connected diabetes. In an October 2020 VA addendum medical opinion, the examiner opined that the Veteran’s bilateral eye condition was less likely than not aggravated by his service-connected diabetes. The VA examiners provided detailed rationales as to why bilateral eye condition was not related to service or is neither caused nor aggravated by his service-connected diabetes. The February 2020 and October 2020 VA examiners, however, failed to provide opinion with rationale addressing whether the Veteran’ bilateral eye condition was caused or aggravated by his now service-connected hypertension. 38 C.F.R. § 3.310 (b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the Board finds the VA examiners opinions are inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Obtain opinion from appropriate clinician to determine the nature and etiology of the Veteran’s bilateral eye condition. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The clinician should review the claims file prior to rendering the opinion. The clinician should answer the following questions: (a.) Is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral eye condition is either (i) caused or (ii) aggravated by his service-connected hypertension. If aggravation is found, the clinician should identify the baseline level of severity prior to the onset of aggravation. Supporting rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.