Citation Nr: 21039907 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-33 267 DATE: July 1, 2021 ORDER The appeal seeking entitlement to service connection for a skin condition identified as skin bursts associated with herbicide exposure is dismissed. Entitlement to service connection for hypertension associated with herbicide exposure is granted. Entitlement to a disability rating of 20 percent under Diagnostic Code 8520 (reassigned from Diagnostic Code 8521), but no higher, for left lower extremity peripheral neuropathy prior to December 30, 2020 is granted. Entitlement to a disability rating in excess of 20 percent for left lower extremity peripheral neuropathy beginning December 30, 2020 is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder is remanded. Entitlement to service connection for an eye condition secondary to hypertension or diabetes is remanded. FINDINGS OF FACT 1. At the January 2021 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran's attorney requested withdrawal of the appeal for entitlement to service connection for a skin condition identified as skin bursts associated with herbicide exposure. 2. The Veteran's hypertension is etiologically related to in-service herbicide exposure. 3. The symptoms of the Veteran's left lower extremity peripheral neuropathy more nearly approximated moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking entitlement to service connection for a skin condition identified as skin bursts associated with herbicide exposure by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. 3. The criteria for entitlement to a disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy prior to December 30, 2020 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity peripheral neuropathy beginning December 30, 2020 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty during the Vietnam era from July 1966 to July 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal of September 2016, April 2017, and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the Veteran's electronic claims file. Withdrawal of Appeal 1. Entitlement to service connection for a skin condition identified as skin bursts associated with herbicide exposure The appeal for entitlement service connection for a skin condition identified as skin bursts associated with herbicide exposure has been withdrawn. At the January 2021 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran's attorney requested withdrawal of the appeal for entitlement to service connection for a skin condition identified as skin bursts associated with herbicide exposure. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See generally Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In the present case, the Veteran's attorney requested to withdraw the appeal as to the issue of entitlement to service connection for a skin condition identified as skin bursts associated with herbicide exposure at the January 2021 hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria as they were explicit, unambiguous and done with a full understanding of the consequences of the withdrawal. Thus, there remain no allegations of errors of fact or law for appellate consideration as it relates to this issue. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in active service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). 2. Entitlement to service connection for hypertension associated with herbicide exposure, to include as due to diabetes mellitus, type 2 (diabetes) The Veteran contends that he has hypertension due to herbicide exposure. In the alternative, the Veteran asserts that his hypertension is secondary to service-connected diabetes. In support of his claim, the Veteran's representative has identified the National Academy of Sciences report on Agent Orange, which upgraded hypertension to the "sufficient" category from "limited or suggestive". See January 2021 Board Hearing Transcript. The Veteran is service-connected for diabetes associated with herbicide exposure. The Veteran was afforded a hypertension VA examination in August 2016. The examiner noted the Veteran's currently diagnosed hypertension, but did not provide a medical opinion regarding a link to herbicide exposure, or whether the Veteran's hypertension is caused by or aggravated by his service-connected diabetes. In a July 2016 diabetes VA examination, the examiner opined that the Veteran's hypertension is permanently aggravated by his diabetes. However, no rationale was provided for this opinion. In a March 2021 opinion, a private doctor opined that based on review of the National Academy of Sciences, Veterans and Agent Orange: Update 11 (2018) and the Veteran's personal history, his hypertension is as likely as not due to in-service herbicide exposure. 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 2,4D; 2,4,5T 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. Id. Hypertension is not included on the list of diseases associated with herbicide agents that would trigger presumptive service connection. 38 C.F.R. § 3.309(e). However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As there is a current disability, incurrence of an injury in service, and a link between the current disability and the injury incurred in service, service connection for hypertension as due to herbicide exposure under Combee is warranted. Increased Ratings The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In an October 2017 rating decision, the RO awarded service connection for left lower extremity peripheral neuropathy and assigned a 10 percent disability rating. The Veteran timely perfected an appeal. At the January 2021 Board Hearing, the Veteran's representative requested a 20 percent rating for the Veteran's left lower extremity peripheral neuropathy. He asserted that a 20 percent rating should have been assigned for the entire period on appeal, based on the Veteran's complaints of moderate paresthesia and moderate pain at the October 2017 VA examination. Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board notes that in a January 2021 rating decision, the Veteran was assigned a 20 percent disability rating effective December 30, 2020. As this does not represent a full grant of benefits sought, the issue remains on appeal. 3. Entitlement to a higher rating for left lower extremity peripheral neuropathy Diabetic Peripheral Neuropathy Diseases of the peripheral nerves are evaluated under 38 C.F.R. § 4.124a of the Rating Schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words 'slight,' 'moderate,' 'moderately severe,' and 'severe,' as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are 'equitable and just.' 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. Left lower extremity peripheral neuropathy Prior to December 30, 2020, the Veteran's left lower extremity peripheral neuropathy is rated as 10 percent disabling under Diagnostic Code 8521 of the Rating Schedule. The Board notes that from December 30, 2020 the Veteran's left lower extremity peripheral neuropathy is rated as 20 percent disabling under Diagnostic Code 8520 of the Rating Schedule. The Board changes the diagnostic code under which the Veteran was rated prior to December 30, 2020 from Diagnostic Code 8521 to Diagnostic Code 8520, as Diagnostic Code 8520 contemplates the Veteran's symptoms and allows for a higher maximum disability rating. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Pursuant to Diagnostic Code 8520 (paralysis of the sciatic nerve), a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The Board finds that a disability rating of 20 percent, but no higher, is warranted for peripheral neuropathy of the left lower extremity. A review of the record indicates that the Veteran's left lower extremity peripheral neuropathy is manifested by moderate incomplete paralysis. Specifically, impairment due to incomplete paralysis of the sciatic nerve is primarily sensory in nature with some trophic changes. During an October 2017 VA examination, the following were noted: moderate paresthesias and/or dysesthesias in the bilateral lower extremities, and trophic changes described as decreased hair growth on the lower extremities. The examiner noted the Veteran's lower extremity diabetic peripheral neuropathy. However, when asked to rate the severity of the Veteran's condition, to include the nerve affected, severity, and side affected, the examiner noted that the sciatic and femoral nerves were normal bilaterally. During a January 2021 VA examination, the following were noted: mild intermittent pain on the bilateral lower extremities; moderate paresthesias and/or dysesthesias in the bilateral lower extremities; mild numbness on the right lower extremity and moderate numbness on the left lower extremity; trophic changes described as no hair on lower extremities; and decreased light touch testing results in the bilateral ankle/lower leg and foot/toes. The examiner characterized the severity of the Veteran's condition as moderate bilateral incomplete paralysis of the sciatic, external popliteal, musculocutaneous, and anterior tibial nerves. The Board finds that the Veteran's left lower extremity peripheral neuropathy is manifested by incomplete moderate paralysis, which warrants a rating of 20 percent. The Board notes that the October 2017 VA examiner recorded the Veteran's reported moderate paresthesias and/or dysesthesias in the left lower extremity, and trophic changes to the lower extremities, but did not characterize the severity of the Veteran's left lower extremity peripheral neuropathy. However, VA later assigned a 20 percent disability rating based on the finding of moderate incomplete paralysis by the January 2021 VA examiner. After consideration of all evidence, including the Veteran's pain level, decreased sensation, trophic changes, and lay statements, the severity of the peripheral neuropathy of the lower left extremity is more nearly approximated by a finding of moderate incomplete paralysis of the left lower extremity for the period on appeal prior to December 30, 2020. A rating higher than 20 percent is not warranted as the Veteran's peripheral neuropathy is not more closely approximated by moderately severe incomplete paralysis. As noted above, the impairment of the sciatic nerve appears to be primarily sensory in nature. Trophic changes are present and manifested by loss of hair. However, there is no indication of any muscular atrophy in examinations or treatment records. Further, there is little to no evidence of impaired motor functioning attributable to bilateral peripheral neuropathy of the sciatic nerve. Muscle strength testing was normal during the October 2017 and January 2021 VA examinations. Additionally, testing revealed normal muscle strength with knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion bilaterally. The evidence does not indicate that the Veteran has fallen or has a history of falling due to peripheral neuropathy during the appeal period. As such, a rating higher than 20 percent disabling is not warranted for the left lower extremity peripheral neuropathy. Of note, the January 2021 VA examination indicated that in addition to the sciatic nerve, the following nerves were affected in the Veteran's left lower extremity: external popliteal, musculocutaneous, and anterior tibial. The Board finds that separate ratings are not warranted for these specific nerves. As stated, the Veteran is currently rated for his neurological symptoms under Diagnostic Code 8520 for the sciatic nerve, causing symptoms in the left lower leg and foot. The January 2021 VA examiner stated the Veteran's symptoms were decreased sensation below the knee and the foot/toes. There are no additional symptoms that remain uncompensated. Furthermore, the Board notes that the external popliteal, musculocutaneous, and anterior tibial nerves are part of the sciatic branch which is already receiving a separate rating, and therefore, separate ratings for the external popliteal, musculocutaneous, and anterior tibial nerves are not warranted, as the functions associated with these nerves are not separate and distinct. The medical evidence on file does not specifically attribute any additional neurological symptoms of the left lower extremity to other nerves. VA examinations have repeatedly stated that the Veteran's neurological symptoms involved numbness and pain down the left leg, below the knee, into the foot. "Sciatic" refers to the sciatic nerve; sciatica is used to refer to 'a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by prolapse of the intervertebral disk' the term is also used to refer to pain anywhere along the course of the sciatic nerve'." Ferraro v. Derwinski, 1 Vet. App. 326, 329-30 (1991). The Board accordingly attributes the left lower extremity nerve symptoms shown in the record primarily to the sciatic nerve impairment, and separate ratings for each nerve noted is not warranted as there is no evidence of symptoms that are separate and distinct that remain uncompensated. The sciatic nerve represents the predominant disability and therefore evaluation under Diagnostic Code 8520 is most appropriate. In sum, the Veteran's left lower extremity peripheral neuropathy is manifested by moderate incomplete paralysis. An initial disability rating of 20 percent, but no higher, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and trauma related disorder is remanded. The Veteran claims service connection for PTSD or another psychiatric disorder. See January 2021 Board Hearing Transcript. The Veteran asserts that during his service in Vietnam he was exposed to multiple stressors, to include the death of a friend in a foxhole that he dug, being abandoned by his lieutenant when his unit came under attack, and having to "sit up on a graveyard." See January 2021 Board Hearing Transcript, July 2016 VA examination, August 2016 VA examination. VA has conceded that the Veteran served in a hostile military environment. The Veteran was afforded a VA examination in July 2016. The Veteran reported a stressor as "one of my friends got his head blown off if a foxhole that I dug." The Veteran explained that he had not been able to complete digging the foxhole, and as such, it was not deep enough to protect his friend. The examiner noted that the Veteran had two prior DUI arrests, although the Veteran reported no history of alcohol dependence, and no use in the past two years. The Veteran reported symptoms of dreaming two or three times per month that he is getting called back into the service; occasional withdrawal from others, and trouble sleeping but not experiencing daytime fatigue. The Veteran described his mood as "mostly good." The examiner noted no avoidance behaviors and determined that overall, the Veteran did not report symptoms consistent with a mental health diagnosis. The examiner determined that the Veteran did not meet the criteria for a DSM-5 diagnosis of PTSD or for any other mental disorder and that the Veteran had no mental disorder diagnosis. The Veteran was afforded a second PTSD VA examination in August 2016. The Veteran reported two marriages, with the first ending in divorce due to his spouse's mental health problems. The Veteran reported good relationships with his children and having one close friend. The Veteran also reported being a season ticket holder for a professional sports team and attending games. Regarding his work history, the Veteran was noted to have worked 27 years as a firefighter, in addition to holding other jobs and retiring in 2008. The Veteran endorsed current symptoms of nightmares, distrust of others, and avoiding talking about his military experiences. The Veteran denied a history of alcohol or drug abuse. The VA examiner reviewed the Veteran's claims file and ultimately concurred with the opinion of the July 2016 examiner. The August 2016 examiner noted that the Veteran's reported stressor meets Criteria A for a PTSD diagnosis under the DSM-5, and that the Veteran meets Criteria C for persistent avoidance of stimuli associated with the traumatic event and Criteria E due to hypervigilance and sleep disturbance. However, the examiner explained that the Veteran does not endorse symptoms of persistent intrusion or negative alterations in cognitions and mood associated with the traumatic event. The examiner noted that the symptoms of sleep disturbance and hypervigilance reported by the Veteran do not rise to the level for any DSM-5 mental health diagnosis. Thereafter, the Board notes that the Veteran had a positive PTSD screen at a VA facility in July 2017, and that he was thereafter referred for a mental health evaluation. At the August 2017 evaluation, the Veteran reported the previously noted history, but reported that he drinks on a daily basis and lost his job as a firefighter after making a comment about an Asian-American. The VA psychologist diagnosed the Veteran with trauma related disorder. The Board notes that the most recent VA treatment records associated with the Veteran's file are from October 2017. In light of additional relevant evidence added to the file since the 2016 VA examinations, the Board finds that the Veteran should undergo another VA examination. Updated VA treatment records should also be obtained. 2. Entitlement to service connection for an eye condition secondary to hypertension or diabetes is remanded. The Board notes that the Veteran asserts, in part, that his eye condition is secondary to his hypertension. In light of the Board's award of service connection for hypertension, the Veteran should undergo a VA examination and an opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2017 to the Present. Associate the records with the claims file. 2. After the development above is completed, schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of any acquired psychiatric disability. The entire file must be made available to the examiner. The examiner should render an opinion, consistent with sound medical judgment: (a.) Is it at least as likely as not that any acquired psychiatric disability, including PTSD and trauma related disorder, is etiologically related to the Veteran's military service? The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of any bilateral eye disability. The entire file must be made available to the examiner. The examiner should render an opinion, consistent with sound medical judgment: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any bilateral eye disability was: i. caused by, or ii. aggravated by his service-connected diabetes or hypertension. The examiner's review must include private treatment records from Woodhams Eye Clinic. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.