Citation Nr: 21025665 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-21 035 DATE: April 28, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes, is granted. Entitlement to service connection for an eye condition, including as secondary to service-connected diabetes, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity (LLE) is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity (RLE) is remanded. Entitlement to service connection for hypertension, including as due to herbicide exposure and/or secondary to service-connected diabetes, is remanded. Entitlement to service connection for a bilateral upper extremity muscle disability is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the bilateral upper extremities is secondary to his service-connected diabetes. 2. The Veteran’s eye conditions are not secondary to his service-connected diabetes and are not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for service connection for an eye condition, including as secondary to service-connected diabetes, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to January 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from January 2015, February 2015, and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior remand on these claims in October 2018. I. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or 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). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995).    Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2,4–D; 2,4,5–T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed; hypertension is not included. Id. 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. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes. The Veteran initially filed an informal application for service connection for diabetic neuropathy of the upper and lower limbs in March 2014. The Board notes that the Veteran also requested service connection for degenerative disc disease (DDD) of the cervical spine, chronic myositis para-cervical spine muscles shoulders, arms, and bilateral carpal tunnel syndrome (CTS). He was given a VA examination for his neuropathy in August 2014 and diagnosed with bilateral CTS. In a January 2015 rating decision, the RO granted service connection for bilateral CTS (claimed as diabetic neuropathy of the bilateral upper limbs), but separately denied service connection for (1) DDD of the cervical spine; (2) a bilateral muscle shoulder condition; and (3) a bilateral muscle arm condition. The Veteran appealed all issues up to the Board. In an October 2018 Board decision, the Veteran was denied an initial rating in excess of 10 percent for his bilateral CTS, and denied service connection for DDD of the cervical spine, but his claim for service connection for a bilateral upper extremity muscle disability was remanded. The Board finds this remand to encompass both the claims of service connection for a bilateral shoulder condition and a bilateral arm condition. For reasons explained below, the issue of service connection for a bilateral shoulder condition has been remanded. However, the Board finds that the claim for service connection for a bilateral arm condition should be granted. In compliance with the October 2018 Board remand, the Veteran was given another VA examination for his peripheral nerve conditions. Here, the examiner diagnosed diabetic neuropathy of all four extremities. Specifically, he found the Veteran to have mild, incomplete paralysis of the radial nerve bilaterally, the median nerve bilaterally, the ulnar nerve bilaterally, and the musculocutaneous nerve bilaterally. He further provided an opinion stating “The Veteran less likely as not has a muscle condition or pathology at present, rather the upper extremities and lower extremities symptoms described by the Veteran are at least as likely as not part of the signs and symptoms associated with his service connected peripheral neuropathy secondary to DM. Diabetics are more prone to peripheral neuropathies such as CTS and he also has bilateral clinical u/e peripheral neuropathy, peripheral neuropathy is a systemic condition associated to his service connected DM.” Accordingly, the Board finds that service connection for peripheral neuropathy of the bilateral upper extremities as secondary to the Veteran’s service-connected diabetes is warranted. 2. Entitlement to service connection for an eye condition, including as secondary to service-connected diabetes. The Veteran filed an application for service connection for “eyes condition (retinopathy/glaucoma) associated to DM II” in May 2017. He was given a VA examination for eye conditions in July 2017. Here, the examiner diagnosed the Veteran with nuclear sclerosis bilaterally, pinguecula bilaterally, and vitreous floaters bilaterally. The examiner opined that these conditions were less likely than not incurred in or caused by the Veteran’s active service. Specifically, the examiner wrote “As per VBMS, CPRS files review, interview and medical examination: reduction in visual acuity is due to refractive error and senile cataract changes. Refractive error are [sic] to be considered congenital and developmental in origin. Senile cataract nuclear sclerosis is to be expected in this 68 y/o person. Studies demonstrate that 95% of the person 65 years or older will present some degree of crystalline lens opacification, producing light scattering and blurring of the vision. Veteran presents with bilateral vitreous floaters. Vitreous floaters are commonly caused by aging 65% of the persons over 65 year of age will develop them. They can cause photopsias (flashes) movement and moving shadows. Veteran present with large C/D ratio, to be consisted a glaucoma suspect, OCT health retinal nerve fibers OD 95 OS 96, at present in normal limits. He was recommended to be followed in eye clinic. Veteran does not present with senile diabetic retinopathy. Cataract changes and the floaters and large cup/disc ratio with normal intraocular pressures are not due or the result of diabetes mellitus II.” Based on this opinion the RO issues an August 2017 rating decision denying service connection for an eye condition. The Veteran appealed this issue up to the Board. In October 2018 the Board remanded the claim back to the RO to obtain an addendum opinion regarding the Veteran’s eye conditions and whether they were aggravated by his service-connected diabetes. The Veteran was given another VA examination for his eyes in November 2019. Here, this examiner again diagnosed the Veteran with bilateral nuclear sclerosis, bilateral glaucoma suspect, and bilateral vitreous floaters. She also opined that these conditions were less likely than not incurred in or caused by the Veteran’s active service. A rationale for her opinion, the examiner wrote “Upon eye examination of the Veteran today, diagnosis of bilateral nuclear sclerosis, bilateral vitreous floaters, and bilateral glaucoma suspect were made. These conditions are all age related and expected on a 70 years old patient as the Veteran is. Nuclear sclerosis is due to denaturation of proteins on the crystalline lens leading to lens opacification and decrease vision. Floaters are due to liquefaction of the vitreous with age and glaucoma suspect is due to enlargement of the optic nerve cup.” The examiner then goes on to explain that while in service the Veteran was only diagnosed with bilateral myopia and “None of these conditions diagnosed today were incurred due to myopia since refractive errors do not cause glaucoma suspect, floaters, or cataracts. As mentioned above, these conditions are age related and expected normally as an aging process of the eye. Therefore, it is unlikely that the eye disorders diagnosed today were incurred due to the myopia diagnosed while on service. It is also important to mention that none of these conditions is related, due or aggravated by his diabetes mellitus condition.” The examiner then explains that diabetes mostly causes diabetic retinopathy, which was not diagnosed. The Board finds this opinion to be well reasoned and consistent with the record, entitling it to probative weight. VA treatment records from June 2019 note no diabetic retinopathy changes in both eyes. Moreover, the Veteran has not provided any additional evidence or argument in support of his claim. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. As the preponderance of the evidence is against the claim, entitlement to service connection for an eye condition, to include as secondary to service-connected diabetes, is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the LLE is remanded. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the RLE is remanded. The Veteran initially filed an informal application for service connection for diabetic neuropathy of the upper and lower limbs in March 2014. He was given a VA examination for this condition in August 2014, wherein he was diagnosed with bilateral lower extremities sensory peripheral neuropathy. The examiner found the Veteran to have lower extremity diabetic peripheral neuropathy of the sciatic nerve that manifested as mild, incomplete paralysis bilaterally. Based on this examination, the RO issued a January 2015 rating decision, granting service connection for peripheral neuropathy of the bilateral lower extremities, evaluated at 10 percent each. The Veteran appealed these ratings up to the Board. In October 2018 the Board remanded the claim back to the RO to provide the Veteran with a new VA examination for such, as the record revealed that the Veteran’s condition may have worsened. The Veteran was given another VA examination for his peripheral nerve conditions in October 2019. Here, the examiner diagnosed diabetic neuropathy of all four extremities. With regard to the Veteran’s lower extremities, he found the Veteran to have mild, incomplete paralysis of the sciatic nerve bilaterally; mild incomplete paralysis of the external popliteal bilaterally; mild incomplete paralysis of the musculocutaneous nerve bilaterally; mild, incomplete paralysis of the anterior tibial (deep peroneal) nerve bilaterally; mild incomplete paralysis of the internal popliteal (tibia) nerve bilaterally; mild, incomplete paralysis of the posterior tibial nerve bilaterally; mild, incomplete paralysis of the anterior crural (femoral) nerve bilaterally; mild, incomplete paralysis of the internal saphenous nerve bilaterally; mild, incomplete paralysis of the obturator nerve on the left side only; mild, incomplete paralysis of the external cutaneous nerve of the thigh bilaterally; and mild, incomplete paralysis of the ilio-inguinal nerve bilaterally. Based on this examination, the RO issued a July 2020 rating decision separately granting service connection for (1) incomplete paralysis of the bilateral anterior crural and interior staphenous nerves; (2) incomplete paralysis of the bilateral external cutaneous nerve; (3) incomplete paralysis of the bilateral ilio-lingual nerve; and (4) incomplete paralysis of the obturator nerve of the LLE. The Board finds that an addendum opinion is necessary. 3. Entitlement to service connection for hypertension, including as due to herbicide exposure and/or secondary to service-connected diabetes is remanded. The Veteran initially filed an informal application for service connection for hypertension in March 2014. The Veteran was given a VA examination for such in August 2014. Here, the examiner diagnosed hypertension since 2001. Under remarks the examiner wrote “The Veteran’s hypertension pre-dates the diagnosis of diabetes mellitus, therefore it is not secondary to his service-connected diabetes mellitus. His hypertension is not aggravated by his service-connected diabetes mellitus. He has not developed significant microalbuminuria to suggest early signs of diabetic neuropathy which is known to worsen hypertension.” The examiner later opined that the Veteran’s hypertension was not incurred in or caused by the Veteran’s active military service, writing “The Veteran’s hypertension was diagnosed in 2001, approximately 30 years after discharge from active military service. This does not correlate with Dr. [M’s] opinion from 2/26/14, who did not mention in his letter that he checked the Veteran’s service treatment record to reach such conclusion. Upon interview the Veteran denied diagnosis of hypertension during active military service, and well aware [sic] that the diagnosis was made during a routine visit to his primary care physician at San Juan VAMC. Service treatment records do not show elevated blood pressure readings or diagnosis of hypertension. Separation exam from 1/24/71 shows a blood pressure of 122/71. Also, hypertension is not one of the presumed conditions related to agent orange exposure.” Based on this examination, the RO issued a January 2015 rating decision denying service connection for hypertension. The Veteran appealed this issue up to the Board. In the meantime, the Veteran filed another application for service connection for hypertension as “associated to kidney-DM II.” The Veteran was given another VA examination for his hypertension in July 2017. Here, the examiner again diagnosed hypertension since 2001 and opined that it was less likely than not related to the Veteran’s service-connected diabetes. Specifically, the examiner provided “VA record review discloses that Veteran has history of hypertension since 2001, two years before the onset diabetes; therefore, the hypertension is not caused by the diabetes. Also in the absence of diabetic nephropathy, the hypertension is not aggravated by the diabetes.” Based on these findings, the RO issued another rating decision in August 2017 denying service connection for hypertension. In October 2018 the Board remanded the claim to obtain an addendum opinion regarding whether the Veteran’s hypertension was caused or aggravated by his presumed in-service herbicide exposure. The Veteran was given a third VA examination for his hypertension in October 2019. Here, the examiner opined that it was less likely than not that the Veteran’s hypertension was related to his presumed herbicide exposure. As rationale for her opinion the examiner wrote “The reference from the National Academy of Sciences Veterans and Agent Orange was also reviewed. Although the update states that there is suggestive evidence to link hypertension to agent orange exposure, there is limited evidence that it causes or aggravates it. It also states that additional research is warranted. Furthermore the update states that ‘The conclusions are related to associations between exposure and outcomes in human populations, not to the likelihood that any individual’s health problem is associated with or caused by the chemicals in question.’ Review of medical literature such as the medical textbook publications Harrison’s Principles of Internal Medicine, 19e and Current Medical Diagnosis & Treatment 2016 in addition to online current medical reference, uptodate.com fail to show that exposure to agent orange or herbicides cause, aggravates or is a risk factor to develop hypertension.” With regard to secondary service connection, the examiner wrote “There is no evidence of significant micro-albumin/creatinine ratio to support a diagnosis of diabetic nephropathy as a direct etiologic factor preceding a diagnosis of hypertension. In the absence of diabetic nephropathy, a direct etiologic link between both conditions cannot be established.” Finally, with regard to aggravation of the Veteran’s hypertension by his service-connected diabetes, the examiner wrote “The medical records show that the hypertension has been very well controlled for years. There is no evidence of permanent aggravation beyond its natural course by the diabetes. There is no evidence of significant micro-albumin/creatinine ratio to support a diagnosis of diabetic nephropathy as a direct etiologic or aggravating factor. In the absence of diabetic nephropathy, a direct etiologic link or aggravation cannot be established.” In November 2019 the Veteran provided a private opinion (almost identical to the March 2014 opinion), wherein he was noted to have a diagnosis of hypertension and it was opined “This is a 70 years old Veteran who presents sensorial, cardiopulmonary and musculoskeletal disease which psychiatrics disorder which are more probable than not secondary to his military service performance.” However, no rationale for the conclusions reached was provided. In regard to the October 2019 VA opinion addressing herbicide exposure, the VA examiner’s indication that the “update states that there is suggestive evidence to link hypertension to agent orange exposure,” it does not appear that the examiner considered the most recent update. Thus, the Board finds that an addendum opinion is necessary. 4. Entitlement to service connection for a bilateral upper extremity muscle disability is remanded. In the October 2018 Board remand, the RO was instructed to provide the Veteran with an addendum opinion regarding his previously diagnosed myositis and its relationship to his active service. In October 2019 the Veteran was given a VA examination for his muscle injuries wherein no diagnosis was found and it was opined that “The Veteran less likely as not has a muscle injury or a muscle condition or pathology at present” rather his conditions were related to peripheral neuropathy secondary to his service-connected diabetes. The Board notes that the examiner did not provide a discussion or address the Veteran’s previous diagnosis of myositis as directed in the prior remand. Accordingly, an additional remand is warranted to address this prior diagnosis. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). 5. Entitlement to service connection for an acquired psychiatric condition is remanded. In the October 2018 Board remand, the RO was instructed to provide the Veteran with an addendum opinion addressing his psychiatric disorder(s). Specifically, the examiner was to provide an opinion regarding a diagnosis of posttraumatic stress disorder, and to identify all psychiatric disorders to include generalized anxiety disorder (GAD) and major depressive disorder (MDD). If no psychiatric diagnoses were found the examiner was instructed to reconcile them with the prior diagnoses findings from March 2014 provided by the Veteran’s private physician. The Veteran was given a VA examination in November 2019 wherein no psychiatric diagnosis was found. The examiner determined that no formal diagnosis could be made using the DSM-5 but did note that the Veteran had been recently diagnosed with adjustment disorder with anxiety in VA treatment records. Nevertheless, the examiner opined that because the Veteran’s mental status examination was negative for a formal mental condition on that day the opinion requested could not be rendered. The examiner also did not address the Veteran’s prior psychiatric diagnosis. Accordingly, another remanded is warranted to obtain an addendum opinion regarding such. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). 6. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the claims for entitlement to service connection, therefore this issue must be remanded as well. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Obtain an addendum opinion to the October 2019 VA examination regarding the Veteran’s diabetic neuropathy of the lower extremities. The examiner should answer the following questions: (a.) In regard to the sensory and motor function of the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous nerve (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal nerve (tibial), and posterior tibial nerve, are the functions affected the same? Please explain why or why not. (b.) In regard to the sensory and motor function of the anterior crural nerve (femoral) and internal saphenous nerve, are the functions affected the same? Please explain why or why not. 3. Obtain an addendum opinion to the October 2019 VA opinion regarding the Veteran's hypertension. The examiner should answer the following questions: (a.) In light of the National Academy of Sciences upgrade of hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure (see Veterans and Agent Orange: Update 11 (2018)), is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is etiologically related to his presumed in-service herbicide exposure given his medical history, family history, existence of or absence of other risk factors, and any other additional factors deemed relevant by the examiner. The examiner should provide a detailed rationale for his or her opinion. 4. Obtain an addendum opinion regarding the Veteran’s previously diagnosed myositis. A copy of the Veteran’s entire claim file should be provided to the examiner and a note that such was reviewed should be included in the report. The examiner should answer the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s previously diagnosed myositis is casually or etiologically related to his active service? A detailed rationale for the opinion must be provided. 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.   5. Obtain an addendum opinion regarding the Veteran’s previously diagnosed psychiatric conditions to include GAD, MDD, and adjustment disorder. A copy of the Veteran’s entire claim file should be provided to the examiner and a note that such was reviewed should be included in the report. The examiner should answer the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s previously diagnosed GAD, MDD, and/or adjustment disorder is casually or etiologically related to his active service? In formulating an opinion, the examiner should specifically consider and address: (1) the opinions provided by the Veteran’s private physician dated March 14, 2014 and November 8, 2019; and (2) VA treatment records listing a diagnosis of adjustment disorder with mixed anxiety and depressed mood and/or adjustment disorder with anxiety in 2017 and 2018. A detailed rationale for the opinion must be provided. 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.   TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.