Citation Nr: 21023921 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-58 902 DATE: April 21, 2021 ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure. 2. Entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II. ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure is denied. REMANDED Entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II is remanded. FINDING OF FACT There is no diagnosis of peripheral neuropathy of the bilateral upper extremities. CONCLUSION OF LAW The criteria for service connection of peripheral neuropathy of the bilateral upper extremities are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in October 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. By way of background, this matter was before the Board in December 2019 and January 2020. In the December 2019 decision, the Veteran’s service connection claims were subject to a stay issued on July 1, 2019 by the Secretary of Veterans Affairs. In this December 2019 decision, the Board also reopened that Veteran’s claim for entitlement to service connection for hypertension. The Board of Veterans’ Appeals was to stay adjudication of all cases which may have been affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. In the January 2020 decision, the Board, in pertinent part, remanded the Veteran’s claims of entitlement to service connection for (1) peripheral neuropathy of the bilateral upper and lower extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure and (2) hypertension, to include as due to diabetes mellitus, type II for the purpose of obtaining VA examinations. In a November 2020 rating decision, the Veteran was granted service connection for diabetic peripheral neuropathy, femoral nerve left and right lower extremity. The Veteran was also granted service connection for diabetic peripheral neuropathy, sciatic nerve, left and right lower extremity. See November 24, 2020 Rating Decision. Therefore, this issue is no longer before the Board and has been resolved. In a November 2020 Supplemental Statement of the Case (SSOC), the Veteran’s claims for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure and service connection for hypertension, to include as due to diabetes mellitus, type II, remained denied. See November 24, 2020 SSOC. These matters have been properly returned for to the Board for appellate consideration. The Board is satisfied that there has been substantial compliance with the Board’s January 2020 remand with respect to the Veteran’s service connection claim for peripheral neuropathy of the bilateral upper extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure. See Stegall v. West, 11 Vet. App. 268 (1998). As will be discussed in the remand section of this decision, the Board finds that further development is required for the Veteran’s service connection claim for hypertension, to include as due to diabetes mellitus, type II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are among the listed conditions, with a presumptive period of one year following service. As was noted in the January 2020 Board decision and remand, exposure to tactical herbicides is established based on the Veteran's Vietnam service. 38 C.F.R. § 3.307(a)(6). For Veterans exposed to tactical herbicides, service connection may be presumed for certain listed diseases, including certain neuropathic conditions. 38 C.F.R. § 3.309 (e). Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection with regard to herbicide agents. 78 Fed. Reg. 54736 (Sept. 6, 2013). As amended, peripheral neuropathy still needs to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. Id. Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure. The Veteran is seeking service connection for peripheral neuropathy of the bilateral upper extremities. The Board remanded the Veteran's claims for a VA examination to first determine whether the Veteran had a diagnosis of peripheral neuropathy of the bilateral upper and lower extremities, and second, to determine whether his upper and lower extremity peripheral neuropathy was secondary to his service connected diabetes mellitus, type II, and/or herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board observes that the Veteran was found to have a diagnosis of peripheral neuropathy of the bilateral lower extremities. As referenced in the introduction of this decision, the Veteran was subsequently granted service connection for peripheral neuropathy of the bilateral lower extremities. The Board’s discussion below will be limited to the Veteran’s claim for service connection for peripheral neuropathy of the bilateral upper extremities. The Veteran was afforded an August 2020 Diabetic Sensory Motor Peripheral Neuropathy examination and medical opinion pursuant to the Board’s January 2020 remand directives. The VA examiner was first to determine whether the Veteran had a diagnosis of peripheral neuropathy of the bilateral upper extremities. This August 2020 VA examiner noted review of the Veteran’s claims file, including review of the Veteran’s treatment records from Heartland Podiatry, P.C., and recorded that this was an in-person examination. During this VA examination, the Veteran denied paresthesia in either hand. The Veteran stated that he has occasional shooting pain in both hands that is not sustained. See August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy examination, pgs. 1-3. The VA examiner reported that the Veteran does not have upper extremity diabetic peripheral neuropathy. See August 2020 Diabetic Sensory Motor Peripheral Neuropathy examination, pg. 5; See also August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy Medical Opinion, pg. 3. The VA examiner reported that the Veteran did not have any symptoms attributable to diabetic peripheral neuropathy of the right or left upper extremity (constant pain, intermittent pain, paresthesias and/or dysesthesias, numbness). Muscular strength exams were all normal. The examiner recorded the Veteran's subjective complaints but found no objective evidence of any peripheral neuropathy conditions in the bilateral upper extremities. Therefore, the examiner found no current diagnosis of upper right or left peripheral neuropathy. No other pertinent physical finds, complications, conditions, sings and or symptoms were noted by the examiner. See August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy examination, pgs. 3-6. The Board notes that the August 2020 examiner reviewed all of the pertinent evidence of record, including records from Heartland Podiatric, PC, dated April 20, 2020, which document a diagnosis of Type 2 diabetes mellitus with diabetic polyneuropathy. In the August 2020 examination report, the VA examiner acknowledged review of this evidence and that the Veteran has had shooting pain in his feet for years. See August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy examination, pg. 2; See also April 20, 2020, Heartland Podiatry, PC treatment records re: complaint of painful neuropathy, shooting pain in feet for years, mostly at night. The VA examiner reported that the Veteran does not have upper extremity diabetic peripheral neuropathy. See August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy examination, pg. 5; See also August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy Medical Opinion, pg. 3. Without a formal diagnosis of peripheral neuropathy, there can be no medical nexus on either a direct service or secondary service connection theory of entitlement. The Board has acknowledged the Veteran's subjective and competent reports of neuropathic symptoms, specifically, occasional shooting pain in both hands that is not sustained. However, his lay statements are outweighed by the medical evidence based on formal testing, observation, and opinions from a person having additional applicable knowledge and training. Therefore, the Veteran's statements that he has a bilateral upper extremity peripheral neuropathy is not considered competent evidence demonstrating a current disability and lack weight. See Jandreau, 492 F.3d at 1377. More to this point: The Board acknowledges the recent Federal Circuit decision in Saunders v. Wilkie in which the Court found that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board has considered whether a current disability regarding the Veteran’s bilateral upper extremities may be established on this basis. The Board underscores however that during this August 2020 VA examination, the examiner recorded that the Veteran did not have any symptoms attributable to diabetic peripheral neuropathy of the right or left upper extremity (constant pain, intermittent pain, paresthesias and/or dysesthesias, numbness). The examiner recorded that the Veteran denied paresthesia in either hand. Muscular strength exams were all normal. Further, the record does not contain any reports by the Veteran of pain causing functional impairment and no such complaints were noted in the examination report as it relates to the Veteran’s bilateral upper extremities. See August 26, 2020 Diabetic Sensory Motor Peripheral Neuropathy Medical Opinion, pgs. 3-6-7 re: no symptoms, bilateral upper extremities and functional impairment (loses balance secondary to numbness in both feet). Therefore, with respect to pain causing functional impairment, no disability exists relating to the Veteran's bilateral upper extremities for which VA compensation can be awarded. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection requires that the Veteran have a current disability. 38 U.S.C. § 1110. The claimant satisfies the current disability requirement when the claimant has a disability at the time a claim for VA benefits were filed or has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). For the reasons explained above, this has not been met here. The Board finds that the preponderance of the relevant competent evidence weighs against finding that the Veteran has a current peripheral neuropathy of the bilateral upper extremities. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the service connection claim for peripheral neuropathy of the bilateral upper extremities, to include as due to diabetes mellitus, type II, and/or herbicide exposure is denied. As a final point, the Board notes that, should the Veteran have evidence showing that he meets the criteria for a diagnosis of a peripheral neuropathy of the bilateral upper extremities, or should he meet such diagnostic criteria in the future, he may file a Supplemental Claim and submit or identify this evidence at any time. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. (Continued on next page.) REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II is remanded. The Veteran contends that his hypertension is related to his military service. The Veteran has alternatively argued that his hypertension is secondary to his service-connected diabetes mellitus, type II. See June 9, 2015, Notice of Disagreement (NOD); See also, Board Hearing transcript, pgs. 6-7. Pursuant to the Board’s January 2020 remand directives, the Veteran was afforded a Hypertension examination and medical opinion in August 2020 to address both theories of entitlement: direct service connection and secondary service connection. While the medical opinion in the August 2020 examination appears to be adequate for adjudication purposes regarding the issue of secondary service connection, the medical opinion is not adequate to address the issue of direct service connection. In the August 2020 Hypertension Medical Opinion, the examiner opined that his hypertension is less likely than not related to military service. The examiner explained that the service treatment records are negative for diagnosis or treatment of hypertension. The examiner also explained that hypertension is not a presumptive disease listed under 38 C.F.R. § 3.309 (e). See August 26, 2020 Hypertension Medical Opinion, pg. 2. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examiner's negative nexus opinion is inadequate, as it is wholly conclusory and unsupported by medical rationale. The Board observes that the examiner did not explain the significance of the gap in time (or lack thereof) between separation from service and diagnosis or why the Veteran's hypertension could not be related to service. Here, the examiner relied solely on the lack of treatment during service. The examiner did note in the examination report, by medical history, that the Veteran was diagnosed with hypertension in 1972. See August 26, 2020 Hypertension examination, pg. 3. The Board also points out that as the Veteran served in Vietnam, he is presumed to have been exposed to herbicide agents, including Agent Orange. See January 13, 2020 BVA decision, pgs. 9-10. The National Academy of Sciences (NAS) has indicated that there is sufficient evidence of an association between hypertension and Agent Orange exposure. See Veterans and Agent Orange: Update 11 (2018). An opinion has not been provided as to whether the Veteran's hypertension is related to his herbicide agent exposure in service. As such, a remand is necessary to obtain a new medical opinion as to the etiology of the Veteran's hypertension. For the reasons stated above, remand is necessary for an adequate etiology opinion regarding the Veteran's hypertension. Accordingly, this matter is REMANDED for the following action: 1. Contact the Veteran to determine if there are any relevant, outstanding private treatment records, (including a physical examination report from Chrysler in 1972) with respect to his claim. If so, undertake all appropriate development necessary to obtain these records from each private treatment provider and/or facility identified by him. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current hypertension is related to service. The clinician should opine as to whether any hypertension experienced by the Veteran, at least as likely as not (1) began during service; (2) manifested within one year after discharge from service; OR (3) is related to an in-service injury or disease, including his presumed exposure to herbicide agents (including Agent Orange). A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In this regard, the clinician should address the NAS's determination that there is now sufficient evidence of an association between hypertension and Agent Orange exposure (See Veterans and Agent Orange: Update 11 (2018)). The fact that hypertension is not yet on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki,23 Vet. App. 382(2010). 3. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his attorney with a Supplemental Statement of the Case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.