Citation Nr: 21030660 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-33 967 DATE: May 19, 2021 ORDER Entitlement to service connection for kidney disease, including as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for peripheral and median neuropathy of the upper left extremity, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for peripheral and median neuropathy of the right upper extremity, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for hypertension, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II, is denied. FINDINGS OF FACT 1. The Veteran's kidney disease is not etiologically related to service and is not secondary to his service-connected diabetes mellitus type II disability. 2. The Veteran's median neuropathy of the upper left extremity is not etiologically related to service, including as due to exposure to herbicide agents, and is not secondary to his service-connected diabetes mellitus type II disability. 3. The Veteran's median neuropathy of the right upper extremity is not etiologically related to service, including as due to exposure to herbicide agents, and is not secondary to his service-connected diabetes mellitus type II disability. 4. The Veteran's hypertension is not etiologically related to service, including as due to exposure to herbicide agents, and is not secondary to his diabetes mellitus type II disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for kidney disease, including as secondary to diabetes mellitus type II has not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for peripheral and median neuropathy of the upper left extremity, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for peripheral and median neuropathy of the right upper extremity, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for hypertension, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1967 to May 1969, including service in Korea near the DMZ. In April 2019, the Board expanded the Veteran's claim of peripheral neuropathy of the upper extremities to include a claim for service connection for median neuropathy of the upper extremities. The Board also expanded the Veteran's claim to include hypertension as a separate claim as it was reasonably raised by the record. The issues were remanded for new VA examinations and opinions. In August 2020, the issues were again remanded for VA treatment records, private treatment records, and a Supplemental Statement of the Case (SSOC) for the issue of service connection for hypertension, including as due to exposure to herbicide agents and as secondary 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; 38 C.F.R. § § 3.303 (a). To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for kidney disease, including as secondary to diabetes mellitus type II. The Veteran contends that his diagnosed kidney disease is related to his military service, including exposure to herbicide agents, or in the alternative secondary to his diabetes mellitus, type II disability. The Veteran's service treatment records (STRs) are absent a finding of treatment or a diagnosis of a kidney disorder. Post-service treatment records reflect a diagnosis of renal insufficiency that began in 2004, many decades after separation from service. The examiner diagnosed chronic kidney disease, and the Veteran denied any symptoms or treatment for his kidney disease. A November 2013 VA kidney examiner opined it is less likely than not the Veteran's kidney condition was caused by his service-connected diabetes as the Veteran had renal insufficiency since 2006 and his blood sugars were normal until his diagnosis of diabetes in 2013. The examiner stated their opinion was that the Veteran's kidney disease was a result of analgesic nephropathy and not diabetes and stated the Veteran's hypertension and lack of proteinuria were consistent with this diagnosis. While the November 2013 kidney examiner provided an opinion based on a sound rationale and supported by medical evidence, the opinion failed to consider whether the Veteran's service-connected diabetic condition aggravated his kidney condition. In an April 2019 remand, the Board remanded the issue for a new VA opinion. A March 2020 VA examiner opined it was less likely than not the Veteran's kidney disease was incurred in or caused by the Veteran's service, including exposure to Agent Orange. The rationale provided was that an April 16, 2019 renal consult by an expert determined that the etiology of the Veteran's chronic kidney disease is hypertension. The examiner specifically noted the April 2019 physician's statement that the likely etiology of the Veteran's kidney disease is the underlying hypertension. Lastly, the examiner stated that the Veteran's renal functions have slightly varied when his hypertension non-adherence occurs, however his chronic renal disease does not seem to correlate with his service-connected diabetes readings. As for the Veteran's kidney disease and any relation to exposure to Agent Orange, the VA examiner, after consulting the National Academies of Science-Institute of Medicine's report on Veteran's and Agent Orange, stated there is no known proximal/causal or aggravation relationship between chronic kidney disease and Agent Orange at this time. The examiner went on to state that the April 2019 nephrologist and kidney subject-matter experts have found the Veteran's chronic kidney disease to be due to hypertension and thus not due to a toxic etiology but a cardiovascular etiology. The VA examiner opined it is less likely as not the Veteran's kidney disease is aggravated beyond the normal course of the condition by his service-connected diabetes disability. The rationale provided was that the cardiovascular changes of chronic hypertension explain the Veteran's renal disease and the diabetes has remained relatively stable while his chronic renal disease has worsened in lockstep with his increased blood pressure readings. The evidence does not show that the Veteran's chronic kidney disease had its onset in or is etiologically related to his service, as noted above there were no complaints, treatment, or diagnosis of a kidney condition during service or within one year of separation from service. Likewise, no VA examiner has determined that the Veteran's chronic kidney disease was caused by or aggravated by his service-connected diabetes mellitus disability as the kidney disease has been determined to be due to hypertension, the diagnosis of diabetes was made well after the diagnosis of a kidney condition, and the severity of the diabetes is not currently such as would be expected to have played any role in the kidney disease. There is no competent medical evidence that suggests the Veteran's chronic kidney disease is in any way related to service or a service-connected disability. While the Veteran believes his currently diagnosed chronic kidney disease is related to service or in the alternative secondary to his service-connected diabetes mellitus disability, he is not competent to provide an etiology in this case. Though the Veteran may be competent and credible to describe the particular symptoms from which he suffers, determining the etiology of chronic kidney disease requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the evidence is against a finding the Veteran has a diagnosis of chronic kidney disease that is etiologically related to service or secondary to service-connected diabetes mellitus. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for peripheral and median neuropathy of the upper left extremity, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II. The Veteran contends that his diagnosed median neuropathy of the upper left extremity is related to his military service, including exposure to herbicide agents, or in the alternative secondary to his diabetes mellitus, type II disability. The Veteran's service treatment records are absent a finding of treatment or a diagnosis of peripheral or median neuropathy. Post-service treatment records reflect a nerve conduction study in June 2013 which showed the Veteran had median neuropathy at the wrists, but as there was no clinical evidence, the criteria to establish a diagnosis of peripheral neuropathy was met. According to a March 2020 VA examination for diabetic sensory-motor peripheral neuropathy, the Veteran had no symptoms attributable to diabetic peripheral neuropathy of the left upper extremity. The examiner did note left upper extremity incomplete paralysis of the median nerve. In the remarks section of the examination, the examiner stated that the Veteran's median nerve neuropathy is not due to diabetes but instead is a separate and independent condition from diabetes and his lower extremity bilateral diabetic peripheral neuropathy and due to carpal tunnel inflammation/compression. The examiner opined the Veteran's upper extremity median neuropathy/carpal tunnel syndrome is less likely as not due to or related to service or exposure to Agent Orange. The rationale provided was that carpal tunnel syndrome is the cause of the Veteran's left upper extremity median neuropathy and thus, with a known and clear cause, coupled with the fact that his ulnar and radial nerves were normal, show that neither diabetes or Agent Orange are the cause or aggravation of his left upper extremity neuropathy. Lastly, the examiner stated if the Veteran's diabetes mellitus were aggravating his median neuropathy, some degree of minor effect on all the nerves at that same level, to include the radial and ulnar nerves, would be shown. Since the Veteran shows no signs of radial or ulnar neuropathy, and his records and clinical examination remain consistent with mild to moderate bilateral median neuropathy, it has not progressed in severity. While the Veteran believes his currently diagnosed upper left extremity median neuropathy is related to service or in the alternative secondary to his service-connected diabetes mellitus disability, he is not competent to provide an etiology in this case. Though the Veteran may be competent and credible to describe the particular symptoms from which he suffers, determining the etiology of chronic kidney disease requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the evidence is against a finding the Veteran has a diagnosis of left upper extremity median neuropathy that is related to service or secondary to his service-connected diabetes mellitus disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for peripheral and median neuropathy of the right upper extremity, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II The Veteran contends that his diagnosed median neuropathy of the upper right extremity is related to his military service, including exposure to herbicide agents, or in the alternative secondary to his diabetes mellitus, type II disability. The Veteran's service treatment records are absent a finding of treatment or a diagnosis of peripheral or median neuropathy. Post-service treatment records reflect a nerve conduction study in June 2013 which showed the Veteran had median neuropathy at the wrists but there was no clinical evidence the criteria to establish a diagnosis of peripheral neuropathy was met. According to a March 2020 VA examination for diabetic sensory-motor peripheral neuropathy, the Veteran had no symptoms attributable to diabetic peripheral neuropathy of the right upper extremity. The examiner did note right upper extremity incomplete paralysis of the median nerve. In the remarks section of the examination, the examiner stated that the Veteran's median nerve neuropathy is not due to diabetes but instead is a separate and independent condition from diabetes and his lower extremity bilateral diabetic peripheral neuropathy and due to carpal tunnel inflammation/compression. The examiner opined the Veteran's upper extremity median neuropathy/carpal tunnel syndrome is less likely as not due to or related to service or exposure to Agent Orange. The rationale provided was that carpal tunnel syndrome is the cause of the Veteran's right upper extremity median neuropathy and thus, with a known and clear cause, coupled with the fact that his ulnar and radial nerves were normal, show that neither diabetes or Agent Orange are the cause or aggravation of his right upper extremity neuropathy. Lastly, the examiner stated if the Veteran's diabetes mellitus were aggravating his median neuropathy some degree of minor effect on all the nerves at that same level, to include the radial and ulnar nerves, would be shown. Since the Veteran shows no signs of radial or ulnar neuropathy, and his records and clinical examination remain consistent with mild to moderate bilateral median neuropathy, it has not progressed in severity. While the Veteran believes his currently diagnosed upper right extremity median neuropathy is related to service or in the alternative secondary to his service-connected diabetes mellitus disability, he is not competent to provide an etiology in this case. Though the Veteran may be competent and credible to describe the particular symptoms from which he suffers, determining the etiology of chronic kidney disease requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the evidence is against a finding the Veteran has a diagnosis of right upper extremity median neuropathy that is related to service or secondary to his service-connected diabetes mellitus disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to service connection for hypertension, including as due to exposure to herbicide agents and as secondary to diabetes mellitus type II The Veteran asserts that his diagnosed hypertension is related to his military service, including exposure to herbicide agents, or in the alternative secondary to his diabetes mellitus, type II disability. The Veteran, through his attorney, contends that he is entitled to service connection on a direct basis for hypertension as a result of exposure to herbicide agents while serving in Vietnam. Specifically, the Veteran's attorney asserts that, relying on medical research from the National Academy of Sciences, a connection exists between exposure to herbicide agents and hypertension. Additionally, the Veteran asserts that his hypertension is secondary to his service-connected diabetes mellitus, type II disability. The Board notes that the RO has conceded that the Veteran was exposed to herbicide agents during his service in Vietnam. VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. §1116, 38C.F.R. §3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38U.S.C. §1113; 38 C.F.R. §3.307(d) are also satisfied. 38 C.F.R. §3.309(e). The enumerated diseases, however, do not presently include hypertension. See 38C.F.R. §3.309(e). Nevertheless, although hypertension is not presently among the delineated diseases associated with herbicide agent exposure, service connection for claimed residuals of exposure to herbicide agents may be established with evidence of actual causation. 38 C.F.R. §3.309(e); Stefl v. Nicholson, 21Vet. App.120 (2007). Additionally, although the Veteran's attorney failed to submit any evidence with respect to this issue, the Board acknowledges that the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549 (June 8, 2010). In November 2018, the NAS moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to Agent Orange. See Veterans and Agent Orange: Update 2018. The Board notes that even though the NAS has found that there is "sufficient" evidence of an association between hypertension and exposure to herbicides, this does not provide evidence that this Veteran's hypertension is caused by exposure to herbicides. Evidence suggesting an association is not the same as evidence of causation. Nonetheless, the Board finds that the NAS study raises "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service..." which warrants a VA medical opinion addressing this issue. McLendon v. Nicholson, 20Vet. App.79, 86 (2006). The Veteran's service treatment records are silent for treatment or a diagnosis of hypertension. The Veteran's separation examination reflects that the Veteran had a diastolic reading of 90 at the time of the examination. A March 2020 VA examiner, taking into account the National Academies update as well as other pertinent medical literature from the National Library of Medicine, opined it is less likely than not the Veteran's hypertension is due to Agent Orange exposure. The examiner noted the Veteran's hypertension began approximately in 2006, over 30 years after his Vietnam exposure as well as the Veteran's risk factors of prior obesity, a sedentary lifestyle, and his smoking history from approximately 21-40 years of age. The examiner noted additional risk factors of being male, increasing age, and previous elevate body mass index (BMI) which adds vascular "workload" to the cardiovascular system. The examiner stated the Veteran's hypertension had remained relatively stable, has not required intravenous anti-hypertensives, is not of a malignant type or unusual source such as pheochromocytoma, and is not unusual in pattern such as resistant to treatment or due to nephrotoxicity. The examiner stated the circumstances of the Veteran's hypertension, such as no indication of an unusual type of hypertension, and no early onset or malignant hypertensive events or unusual resistance to medication, do not support any suggestion of a proximal relationship to herbicide exposure. As for the March 1969 separation examination reading of 122/90, the examiner stated the Veteran's systolic was perfectly normal, and in light of a single blood pressure reading, the physiology of the cardiovascular system must be taken into account. The examiner stated the diastolic reading of 90 is the lower limit of normal and simply means the Veteran's blood vessels and his heart were "full" of blood and he was not dehydrated and likely had not voided. The examiner also stated that hypertension, as shown in the October 2006 treatment note, is diagnosed only after 3 consecutive days at approximately the same time, in three separate readings. Additionally, the examiner stated that the Veteran's 1969 blood pressure reading is considered acceptable parameters and does not indicate pathology. Furthermore, the examiner noted that the Veteran did not get a formal diagnosis or treatment until 2006. The examiner also opined it is less likely than not the Veteran's hypertension is proximately due to or the result of his diabetes mellitus, type II disability. The rationale provided was that the Veteran was diagnosed with hypertension in 2006, long before his 2013 diagnosis of diabetes, therefore his diabetes cannot logically be the causal/proximal etiology of his precedent hypertension. As for whether the Veteran's hypertension is aggravated by his diabetes, the examiner stated the Veteran's hypertension treatment began in 2006 with oral monotherapy and by the time of his diabetes diagnosis in 2013 his hypertension was treated with dual oral therapy and he has not had a hypertensive crisis since onset in 2006. The examiner noted that the Veteran's hypertension is still treated with dual oral therapy and he has had no severe or documented fluctuations of his blood pressure that correlate with his diabetes or its treatment. Thus, the examiner stated the hypertension is unrelated to diabetes, is still following its natural progression, and is considered controlled. While the Veteran believes his diagnosed hypertension is related to service, to include exposure to Agent Orange, or in the alternative secondary to his service-connected diabetes mellitus disability, he is not competent to provide an etiology in this case. Though the Veteran may be competent and credible to describe the particular symptoms from which he suffers, determining the etiology of hypertension requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (continued on next page) Based on all available medical evidence, the evidence is against a finding the Veteran's hypertension is related to service or secondary to his service-connected diabetes mellitus disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Neely M. Peden Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.