Citation Nr: 21029125 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-17 986 DATE: May 12, 2021 ORDER Entitlement to service connection for hypertension (claimed as heart problems) is granted. REMANDED Entitlement to service connection for seizures is remanded. Entitlement to service connection for residuals of stroke, is remanded. Entitlement to service connection for bilateral upper peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower peripheral neuropathy is remanded. Entitlement to service connection for scars, back of leg and feet, is remanded. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether hypertension is due to service including exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1969. He died in October 2014. The appellant, as the surviving spouse, has been accepted as a substitute claimant for purposes of processing the claim to completion pursuant to 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision. In November 6, 2014, the appellant filed VA Form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary. In July 2016, she filed VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits. A rating decision of January 2016 denied service connection for the cause of the Veteran's death. In February 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record indicates that the Veteran served in the Republic of Vietnam from November 1966 to November 1967. Accordingly, exposure to an herbicide agent may be presumed. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Notwithstanding any evidentiary presumption relating to service connection, a claimant can establish service connection for a disability based upon adequate evidence of actual causation. 38 U.S.C. § 1113(b); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, an adequate nexus opinion must clarify and explain not only why a link may not be presumed based on herbicide exposure, but also whether it is at least as likely as not that the Veteran's hypertension was actually caused by his herbicide exposure or other incident of service. 1. Entitlement to service connection for hypertension is granted. The Board finds that the evidence is in equipoise, and the Veteran's claim for hypertension is granted. The Veteran filed this claim in March 2012. While the claims record supported a current disability of hypertension, the claim was previously remanded by the Board in May 2019 for an opinion regarding whether any of the Veteran's heart conditions, including hypertension, was due to service, to include his presumed Agent Orange Exposure. As noted in the prior remand, the scope of the disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim for a heart disorder was expanded to include a claim for hypertension. The Appellant submitted a January 2021 private opinion linking the Veteran's abdominal aorta aneurysm, peripheral artery disease, and cerebrovascular accidents to chronic hypertension. The opinion reports that "it is not clear when [the Veteran] was initially diagnosed with hypertension." However, "he was diagnosed with hypertension some years prior to August 8, 2000." Moreover, he was "subsequently diagnosed with an abdominal aortic aneurysm in approximately August 2005." The rationale goes on to cite medical literature that shows a causal link between Agent Orange exposure and the development of hypertension. This literature was attached to the opinion. The private physician opined, "[t]he likelihood that [the Veteran's] exposure to Agent Orange contributed to the development of his hypertension is increased by the early development and diagnosis of hypertension." The private physician also reports that one of the most common causes of an abdominal aortic aneurysm is hypertension. Additionally, the private opinion, citing the post-remand December 2019 opinion's statement that "[n]one of the Veteran's conditions have been linked to service," notes that the VA examiner must not have been aware of the most recent medical literature, the Veterans and Agent Orange: Update 11 (2018), that reported a link between hypertension and Agent Orange. In conclusion, the examiner opined it is as likely as not that the Veteran's exposure to Agent Orange and other tactical herbicides caused his hypertension. The Board finds that the January 2021 private opinion should be afforded probative value. The opinion includes clear findings linking hypertension to the Veteran's exposure to herbicide agents with citations to pertinent evidence in the record as support as well as citations to medical research. The opinion also addresses the negative evidence of record regarding the hypertension opinions. Based on the above and resolving all reasonable doubt is resolved in favor of the Veteran, the Board finds that service connection is warranted for hypertension. REASONS FOR REMAND 2. Entitlement to service connection for seizures is remanded. 3. Entitlement to service connection for residuals of stroke, is remanded. A March 2004 letter from the Veteran's previous warehouse supervisor, in pertinent part, reported the Veteran smoked a lot prior to his stroke and noted the affect the Veteran's stroke had on his ability to perform his job. A June 2011 letter from Dr. Fitzgibbon, a private physician, reported the Veteran had many health problems that began with his first stroke in 2000; then he had another stroke in 2008 as well. Yet the correspondence does not report an etiology for the Veteran's stroke. A November 2013 opinion, received by the VA in December 2013, reported that it is the drafter's medical opinion that the medical conditions that the Veteran. [sic] It is as likely than not due to the Veteran's exposure to herbicides to Agent Orange in Vietnam for 12 months. A May 2016 private opinion from Dr. Stuckey reports it is highly likely that the Veteran's stroke was linked to his hypertension, but a rationale was not given. An additional May 2016 opinion from Dr. Fitzgibbon reports that the Veteran previously suffered an embolic stroke. Moreover, the opinion reports that he read the service connection items in the denial report. Thus, the diseases had all been listed in the VA's list of service connection that have been shown to happen in Veteran's that have been exposed to herbicides in Vietnam. Accordingly, he felt that the Veteran's denial of service connection should be reviewed. The VA list that the private physician was referring to, was not attached. However, the list of conditions associated with presumptive service connection for Veteran's exposed to herbicides does not include a general condition of "seizures or residuals of stroke." Moreover, a suggestion to review the Veteran's claims is too general to amount to an etiology opinion. At the Veteran's February 2019 Board hearing, his wife, the Appellant, reported that the Veteran's conditions of seizures and strokes all came from hypertension. Most recently, a private physician, Dr. Anderson, reported that hypertension is a significant factor in the development of stroke. Thus, it is at least as likely as not that the Veteran's stroke was caused by or aggravated his chronic hypertension. Without further explanation, this opinion as it stands is inadequate. Noting that hypertension is generally a causal factor for stroke does not tie the specifics of the Veteran's medical history of hypertension and how it caused his strokes. Notably, the record reports the Veteran was a heavy smoker and his strokes are associated with this. However, as the Veteran's claim for service connection for hypertension has been granted and the medical record suggests the Veteran's conditions may be related to his hypertension, a remand is needed for secondary service connection opinions for the Veteran's stroke and seizures claims. 4. Entitlement to service connection for bilateral lower peripheral neuropathy, upper and lower, is remanded. As noted in the Board's prior remand, while the Veteran and Appellant have submitted positive opinions regarding the Veteran's peripheral neuropathy, the opinions do not specify that the Veteran's neuropathy was early onset, which is needed for presumptive service connection based on herbicide exposure. A June 2019 opinion from a private physician reports the Veteran was in Vietnam and in areas known to have been sprayed with Agent Orange. Moreover, he was treated by the VA for his peripheral neuropathy. Thus, it is more likely that his service to his country and the subsequent exposure to Agent Orange did cause his neuropathy. This opinion suggests that the Veteran's peripheral neuropathy is linked to herbicide exposure, but does not give any support linking late onset neuropathy to Agent Orange exposure; moreover, it does not give a rationale as to how the Veteran's neuropathy could be linked to service on a direct basis. In a December 2019 post-remand opinion, a VA examiner reported that the Veteran did not have a formal diagnosis of peripheral neuropathy; and instead his extremity complaints were more likely secondary to his significant peripheral vascular disease. Additionally, the peripheral vascular disease was more likely related to lifestyle factors to include chronic obesity and tobacco smoking. Moreover, there is no relationships between peripheral vascular disease and the Veteran's time in service or to presumed Agent Orange Exposure. In regards to the lay statements relating a chronic history of lower extremity pain, the examiner reported they were not specific and likely multifactorial. In conclusion, there was no objective evidence to substantiate the Veteran's reported lower extremity pain and the extensive vasculopathy at the time of his death. This VA opinion is inadequate. The Veteran's VA medical records do corroborate the June 2019 private opinion's report that the Veteran had peripheral neuropathy. More specially, they repeatedly reported the Veteran was being treated and prescribed gabapentin for his peripheral neuropathy. Absent addressing this positive medical evidence, the VA opinion relies on an inaccurate factual premise. It is therefore inadequate, and a remand for an adequate addendum opinion consistent with the prior remand is needed. 5. Entitlement to service connection for scars, back of leg and feet, is remanded. In correspondence received by the VA in April 2013, the Appellant reported that she observed the Veteran having several rashes and red spots on his arms and different parts of his body. Later, the Appellant testified at the February 2019 hearing that the Veteran's issues with his skin appeared with the pain he experienced in his legs. To the extent a remand is needed for an opinion regarding peripheral neuropathy of the lower extremities, adjudication of this claim is deferred as it is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise regarding his seizures disorder or strokes, including residuals. After a review of the record, including this remand, the examiner should opine as to: (a.) Is it at least as likely as not that the Veteran's stokes, or residuals were proximately due to his hypertension or aggravated beyond its natural progression by his hypertension condition? (b.) Is it at least as likely as not that the Veteran's stokes, or residuals were proximately due to his hypertension or aggravated beyond its natural progression by his hypertension condition? The Board notes that the Court has held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A rationale is required for all opinions in the report. 3. Consistent with the prior remand's instructions, the RO should obtain an addendum opinion from an appropriate clinician regarding whether peripheral neuropathy of the upper extremities and/or lower extremities was at least as likely as not: (a.) related to an in-service injury or disease, to include presumed exposure to an herbicide agent during service in Vietnam; or (b.) proximately due to a service-connected disability or aggravated beyond its natural progression by a service-connected disability. The clinician should offer an opinion as to whether it is at least as likely as not that the Veteran had early-onset peripheral neuropathy of the upper extremities and/or lower extremities. If so, the clinician should express an opinion as to whether it is at least as likely as not that such neuropathy was present within one year of the Veteran's active service in the Republic of Vietnam. If the clinician finds that it is unlikely that the Veteran had early-onset peripheral neuropathy that was manifested within one year of the Veteran's active service in Vietnam, the clinician should offer a further opinion as to whether it is at least as likely as not that the Veteran's neurologic impairment of the upper extremity and/or lower extremities had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include presumed exposure to an herbicide agent. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.