Citation Nr: 21026017 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-10 821 DATE: April 29, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure, and/or secondary to claimed neck disability, is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure, and/or secondary to claimed neck disability, is denied. FINDINGS OF FACT 1. There is no competent evidence of record that the Veteran suffered from hypertension during his active service, or that his current disability is related to his active service or to herbicide agent exposure therein. 2. There is no competent evidence of record that the Veteran suffered from peripheral neuropathy of the bilateral upper extremities during his active service, or that his current disability is related to his active service, to herbicide agent exposure therein, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309,3.303. 2. The criteria for service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure, and/or secondary to claimed neck disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309,3.303. 3. The criteria for service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure, and/or secondary to claimed neck disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309,3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army with confirmed service from December 1967 to July 1969, to include service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and the Vietnam Campaign Medal. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an April 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in May 2019, and the matter has been returned for appellate consideration. The Veteran’s appeal originally included the issues of entitlement to service connection for a right knee strain, skin cancer (or its residuals), and tinea cruris. In a January 2021 rating decision, the RO granted service connection for each of these issues, therefore they are no longer before the Board. Service Connection Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established 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(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). VA has also established a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, if herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure The Veteran is seeking service connection for hypertension. The Veteran contends that his hypertension is related to active duty service, to include exposure to herbicide agents. As to the first element of service connection, a January 2021 VA examination confirmed the Veteran’s diagnosis of hypertension. Regarding the second element of service connection, the Veteran had active service in the Republic of Vietnam during the requisite time period and is, therefore, presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The VA had previously determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted and entitlement to presumptive service connection is limited to the conditions listed in 38 C.F.R. § 3.309(e). 59 Fed. Reg. 341-46. Hypertension is not currently listed among the disabilities listed in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, the question for the Board is whether the Veteran’s hypertension is related to his in-service herbicide exposure without consideration of the presumption. The Veteran was afforded the January 2021 VA examination to determine the nature and etiology of his hypertension. The VA examiner found that the Veteran’s hypertension was unrelated to the Veteran’s active service, to include herbicide agent exposure. The VA examiner noted the absence of a specific cause for hypertension but acknowledged that genetics can play a role in the development of hypertension. In an addendum opinion also of January 2021, a VA examiner addressed a recent update from the National Academy of Sciences (NAS) that moved hypertension into the category of sufficient evidence from the limited or suggestive category of association with herbicide exposure. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association. The VA examiner found that the Veteran’s hypertension is unrelated to in-service herbicide agent exposure. The VA examiner highlighted age, obesity, family history, race, reduced nephron number, high sodium diet, physical inactivity, and excessive alcohol consumption as risk factors of hypertension. The VA examiner found that Veteran has 4 established risk factors for hypertension, namely age, lack of exercise, obesity, and excessive alcohol consumption. Addressing the 2018 NAS report, the VA examiner opined that the 2018 NAS report, detailing the relationship between hypertension and Agent Orange exposure, represented a weaker linkage of etiological connection than the Veteran’s risk factors for hypertension, with obesity itself increasing the risk of hypertension by three. The VA examiner also pointed out that the 2018 NAS reported relied on anecdotal evidence. In this case, as to the issue of whether the Veteran’s hypertension is related to his military service, to include herbicide exposure, the Board finds that the January 2021 VA addendum opinion is adequate as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, prior physical evaluation of the Veteran, and pursuant to the Board’s remand instructions. Furthermore, the January 2021 VA examiner provided a complete and thorough rationale in support of her opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is also probative evidence against the Veteran’s contention. There is no other competent evidence relating the Veteran’s hypertension to his military service, to include herbicide agent exposure To the extent that the Veteran contends that his hypertension is due to his in-service herbicide exposure, the Board finds that his opinion, on its own, is not competent. Determining the etiology of a disability such as hypertension is complex, requiring medical knowledge or training. Service connection is also not warranted on a presumptive basis, as there is no evidence that the Veteran’s hypertension was manifest to a compensable degree within one year of his separation. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990); 38 C.F.R. § 3.102. Thus, the Veteran’s claim for entitlement to service connection for hypertension is denied. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure, and/or secondary to claimed neck disability. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure, and/or secondary to claimed neck disability The Veteran is seeking service connection for bilateral peripheral neuropathy of the upper extremities. The Veteran contends that his bilateral peripheral neuropathy is due to his active military service, to include herbicide exposure, and/or secondary to his claimed cervical disability. As to the first element of service connection, the January 2021 VA examination confirmed the Veteran’s diagnosis of bilateral peripheral neuropathy of the upper extremities. Accordingly, the first element of secondary service connection a current disability, has been met with respect to this appeal. The Board notes that the Veteran to this point is not service connected for any cervical spine disability. As such, a cause of action based on the theory of secondary service connection cannot be maintained. However, the Veteran is still able to pursue service connection on a direct basis. As noted in the previous section, the Veteran is presumed to have been exposed to herbicide agents during his active service. The Board notes that early onset peripheral neuropathy is listed among the disabilities listed in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted. However, the January 2021 VA examiner did not find that the Veteran suffered from early onset peripheral neuropathy. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee, 34 F.3d at 1039. Therefore, the question for the Board is whether the Veteran’s bilateral peripheral neuropathy of the upper extremities is related to his military service, to include herbicide agent exposure. To that end, the Veteran was afforded the January 2021 VA examination to determine the nature and etiology of the Veteran’s bilateral peripheral neuropathy of the upper extremities. The VA examiner opined that the Veteran’s bilateral peripheral neuropathy was less likely than not related to the Veteran’s active military service, to include herbicide exposure. The VA examiner highlighted that the Veteran’s bilateral peripheral neuropathy is most likely caused by the Veteran’s cervical condition and cervical radiculopathy. Finding the Veteran’s condition to be more of a degenerative condition. Moreover, the VA examiner noted the absence of medical evidence or literature to suggest that the timing and nature of the Veteran’s bilateral peripheral neuropathy occurred in a manner differently than age, gender, and other demographic factors without consideration to the Veteran’s military service. Moreover, the VA examiner found that the Veteran’s bilateral peripheral neuropathy was not early onset peripheral neuropathy. In this case, as to the issue of whether the Veteran’s bilateral peripheral neuropathy of the upper extremities is related to his military service, to include herbicide exposure, the Board finds that the January 2021 VA examination report is adequate, as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, prior physical evaluation of the Veteran, and pursuant to the Board’s remand instructions. Furthermore, the January 2021 VA examiner provided a complete and thorough rationale in support of her opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is also probative evidence against the Veteran’s claim. There is no other competent evidence relating the Veteran’s bilateral peripheral neuropathy of the upper extremities to his military service, to include herbicide exposure To the extent that the Veteran contends that his bilateral peripheral neuropathy is due to his in-service herbicide agent exposure, the Board finds that his opinion, on its own, is not competent. Determining the etiology of a disability such as hypertension is complex, requiring medical knowledge or training. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990); 38 C.F.R. § 3.102. Thus, the Veteran’s claim for entitlement to service connection for bilateral peripheral neuropathy of the upper extremities is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Higgins, 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.