Citation Nr: 21027627 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-15 319A DATE: May 6, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, and/or as proximately due to or aggravated by posttraumatic stress disorder (PTSD), diabetes mellitus, type II, and/or coronary artery disease (CAD) is denied. Entitlement to service connection for left leg peripheral artery disease is denied. Entitlement to service connection for right leg peripheral artery disease is denied. REMANDED Entitlement to service connection for a prostate disability. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's hypertension had its onset in, or is otherwise related to, active service, to include exposure to herbicide agents, and/or that it is proximately due to or aggravated by PTSD, diabetes mellitus, type II, and/or CAD. 2. The weight of the evidence is against a finding that the Veteran's left and right peripheral artery disease had its onset in, or is otherwise related to, active service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left leg peripheral artery disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for right leg peripheral artery disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from February 1964 to August 1968. In August 2009 the Veteran filed a claim for, in pertinent part, service connection for a prostate disability, hypertension, and peripheral artery disease (PAD) of the left and right legs, all claimed as due to exposure to herbicide agents. These claims were denied by a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in December 2011. The Veteran timely initiated an appeal as to his hypertension claim only in May 2012. The Veteran filed a claim to reopen his previously denied claim for bilateral lower extremity PAD and a prostate disability in June 2012. The petition to reopen these claims was denied in a June 2013 rating decision and the Veteran timely initiated an appeal of this decision in July 2013. The Veteran filed a claim for TDIU in April 2015, which was denied in a June 2015 rating decision. He timely initiated an appeal of the June 2015 rating decision in July 2015. Additional development was undertaken as to the hypertension, PAD, and prostate claims and in March 2016 the RO issued a Statement of the Case (SOC) confirming the denial of entitlement to service connection for hypertension; the denial of entitlement to TDIU; and upholding the denials of the Veteran's requests to reopen previously denied claims for service connection for a prostate disability and bilateral lower extremity PAD. The Veteran perfected his appeals by Form 9 in April 2016. In September 2019 the Board of Veterans' Appeals (Board) reopened the Veteran's PAD and prostate claims, and remanded the issues of entitlement to service connection for bilateral lower extremity PAD, a prostate disability, and hypertension, and TDIU for additional development. The Veteran's claims returned to the Board in November 2020, at which time the Board found that there had not been substantial compliance with its September 2019 remand directives, and again remanded the Veteran's claims with the following directives: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. DP, Dr.TK, Henry Medical Center and Emory University Vascular Service. As part of the request, remind the Veteran of his responsibility to cooperate with VA in obtaining records necessary to substantiate his claims. If a signed VA Form 21-4142 is provided, request the authorized records. Also obtain all recent VA treatment records for any of the disabilities on appeal. 2. Obtain an addendum opinion with respect to the Veteran's claim of service connection for hypertension which specifically addresses the relationship, if any to his PTSD. Specifically, the opinion should indicate whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's hypertension was caused by his PTSD or medications taken to treat it, or by any symptoms of PTSD existing prior to a formal diagnosis of an acquired mental health disability. The opinion should also address whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's hypertension has been aggravated or worsened as a result of his PTSD and symptoms thereof. If aggravation is found, a baseline level of disability prior to such aggravation should be indicated. The opinion should specifically consider and discuss the medical research regarding PTSD and hypertension. The opinion should include a rationale or explanation, to include citations to medical evidence of record and relevant research and medical literature as appropriate. The Board finds that there has been substantial compliance with its November 2020 remand directives. In November 2020 the RO sent the Veteran a letter requesting that he complete and return a VA Form 21-4142 with respect to the providers identified by the Board in its November 2020 remand. The RO also requested that the Veteran complete and return VA Forms 21-4142 and 4142a with respect to any other treating providers the Veteran had seen regarding the disabilities on appeal. The Veteran returned completed authorization forms in December 2020. Medical records were obtained and associated with the claims file in December 2020 and January 2021. The RO's efforts to obtain additional records are documented in a series of letters to the Veteran; phone calls with the Veteran; and memoranda added to the claims file, including a January 2021 memorandum documenting a phone call by the RO to clarify the matter of what private treatment records should be sought; at that time the Veteran stated that he would like a decision to be made based on the evidence of record. As discussed further below, a VA opinion addressing the Veteran's hypertension was obtained in January 2021. In light of the foregoing, the Board finds that there has been substantial compliance with its November 2020 remand directives, and that the Veteran's claims are ripe for adjudication on the merits. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A June 2011 memorandum documenting a phone call with the Veteran reflects his contention that his hypertension, PAD, and claimed prostate disability are the result of his exposure to herbicide agents during his active service. The Veteran's military personnel records reflect that he participated in operations in the Republic of Vietnam, to include in the Quang Nam Province in July 1967. Accordingly, the Veteran is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that prostate cancer is a disability for which service-connection will be presumed where herbicide agent exposure is shown or presumed. 38 C.F.R. § 3.307(e). However, neither PAD nor hypertension are presumed to be related to herbicide agent exposure, though service connection may still be demonstrated on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, and/or as proximately due to or aggravated by posttraumatic stress disorder (PTSD), diabetes mellitus, type II, and/or coronary artery disease (CAD) is denied. An April 2019 opinion from a private treating provider, and VA examinations dated January 2020 and January 2021, support the conclusion that the Veteran has a current diagnosis of hypertension. Thus, the remaining question is whether the Veteran's hypertension had its onset during his active service, or is otherwise related to an occurrence in service, to include herbicide agent exposure and/or as secondary to a service-connected disability. At a March 2016 VA hearing the Veteran testified that he had not been diagnosed with hypertension during his period of active service, but had received a diagnosis sometime in 1969, after the end of his active service. The Veteran's Service Treatment Records (STRs), including a July 1968 separation examination, do not reflect any treatment for, or diagnosis of, hypertension. The Board concludes that the weight of the evidence is against a finding that the Veteran's hypertension had its onset during his active service. The April 2019 opinion from a private provider reflects that provider's opinion that the Veteran's hypertension is the result of exposure to herbicide agents. However, as discussed in the Board's September 2019 remand, this opinion is not sufficient to support a finding of service connection. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The April 2019 opinion is conclusory and reflects only the bare statement that the Veteran's hypertension is the result of exposure to herbicide agents. A January 2020 VA examiner opined that the Veteran's hypertension was less likely than not the result of herbicide agent exposure; the examiner cited a "long history" of cigarette smoking and a "strong" family history of cardiovascular disease. The examiner also stated that the Veteran's hypertension was less likely than not the result of the Veteran's service-connected diabetes mellitus type II, as the Veteran was diagnosed with hypertension approximately 9 years before his diabetes diagnosis. The examiner noted that the Veteran may have had hyperglycemia as early as 2014, but no diagnosis of diabetes based on hemoglobin A1C laboratory results until 2016. The examiner also opined that it was less likely than not that the Veteran's hypertension had been aggravated beyond its natural progression by a service-connected disability, to include diabetes and CAD, noting the Veteran's stable blood pressure medication dosage since 2013. In January 2021, a VA examiner opined that the Veteran's hypertension was less likely than not due to, or aggravated by, the Veteran's service-connected PTSD, stating as follows: "Although an association between PTSD and hypertension is noted in the literature, there is no conclusive evidence of a direct etiological link between PTSD (to include medications for PTSD or symptoms of PTSD) and development of essential hypertension. The evidence based medical literature is not of sufficient evidence to support PTSD (to include medications used in treatment of PTSD) as a direct, independent cause of hypertension . . . Risk factors strongly and independently associated with hypertension include age, obesity, family history, race, high sodium diet and physical inactivity. The Veteran has several risk factors for hypertension to include age, race, and family history of hypertension. VA Medical records between April 2011 to December 2020 timeframe reflect elevated BMI ranging between obese to overweight range. Veteran's hypertension is more likely related to these well-established risk factors." Given the foregoing, the Board concludes that the weight of the evidence is against a finding that the Veteran's hypertension had its onset in service and/or is etiologically related to his active service, to include being due to herbicide agent exposure, and/or proximately due to or aggravated by his service-connected coronary artery disease, diabetes mellitus, type II, and/or posttraumatic stress disorder. Accordingly, service connection for hypertension is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See e.g. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for hypertension is denied. 2. Entitlement to service connection for left and right leg peripheral artery disease is denied. A March 2015 VA examination report reflects a 2007 diagnosis of bilateral peripheral artery disease. At a March 2016 VA hearing the Veteran testified that he had not been diagnosed with lower extremity PAD until after the end of his active service. The Veteran's Service Treatment Records (STRs), including a July 1968 separation examination, do not reflect any treatment for, or diagnosis of, lower extremity PAD. The Board concludes that the weight of the evidence is against a finding that the Veteran's bilateral lower extremity PAD had its onset during his active service. In April 2019 the Veteran submitted two opinions from two private providers. The first, Dr. O., opined that the Veteran's PAD is related to the Veteran's herbicide agent exposure. However, as discussed in the Board's September 2019 remand, this opinion is not sufficient to support a finding of service connection. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The April 2019 opinion is conclusory and reflects only the bare statement that the Veteran's PAD was caused by his herbicide agent exposure. The second provider, Dr. T., stated that the Veteran's PAD was not caused by or a result of a condition of the Veteran's active service, but that the PAD was "accelerated" by the Veteran's diabetes mellitus, type II and/or hypertension. The Board now finds that Dr. T.'s opinion is ambiguous as to the relationship between the Veteran's service-connected diabetes, non-service-connected hypertension, and his PAD. To the extent Dr. T. is suggesting that a service-connected disability aggravated the Veteran's PAD, the Board notes that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The April 2019 opinion does not reflect any discussion or analysis of any baseline level of severity of the Veteran's PAD, absent aggravation by any service-connected disability, and so is not adequate to support a finding of aggravation. In January 2020 a VA examiner opined that it was less likely than not that the Veteran's PAD is related to the Veteran's herbicide agent exposure, and/or that it was proximately due to or aggravated by any service-connected disability, to include CAD and diabetes. The examiner stated that there was insufficient evidence in the medical literature to establish a link between herbicide agent exposure and "any other cardiovascular outcome besides ischemic heart disease and stroke." The examiner stated that it was more likely that the Veteran's PAD was related to his "long history of cigarette smoking and strong family history of atherosclerotic cardiovascular disease." The examiner noted that any relationship, causal or aggravating, with the Veteran's service-connected diabetes mellitus, type II or CAD, noting that the Veteran's PAD has been stable since his last major surgery for PAD in 2014, which predated his 2016 diabetes diagnosis. Given the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's bilateral lower extremity peripheral artery disease had its onset in service and/or is etiologically related to his active service, to include being due to herbicide agent exposure, and/or proximately due to or aggravated by his service-connected coronary artery disease and/or diabetes mellitus, type II. Accordingly, service connection for left and right leg peripheral artery disease is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See e.g. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for left and right leg peripheral artery disease is denied. REASONS FOR REMAND 1. Entitlement to service connection for a prostate disability and TDIU are remanded. The Veteran's original August 2009 claim reflects a claim for "enlarged prostate gland." A June 1966 entry in the Veteran's STRs reflects a prostatic examination described as not within normal limits. Also, as noted above, the Veteran served in the Republic of Vietnam in 1967, and exposure to herbicide agents is thus presumed. A July 2013 private treatment note reflects a diagnosis of hyperplasia of prostate, unspecified, without urinary incontinence. At his March 2019 Board hearing, the Veteran testified that he had been diagnosed with an enlarged prostate between one year and a half to two years after the end of his active service VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006) In light of the foregoing, the Board finds that the Veteran's prostate disability claim should be remanded to obtain a VA examination to determine the nature and etiology of any prostate disability. Because evidence developed in the course of adjudicating the Veteran's claim to a prostate disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any prostate disabilities. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any prostate disabilities identified during the examination and the pendency of this claim. For each diagnosed disability, please respond to the following: (a.) Whether the Veteran's prostate disability is at least as likely as not related to an in-service injury, event, or disease, to include exposure to herbicide agents, or whether it first had its onset during a period of active service. (b.) Whether the Veteran's prostate disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. (Continued on the next page) 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.