Citation Nr: 22017408 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-49 997 DATE: March 25, 2022 ORDER Service connection for injury of cutaneous sensory nerve at ankle and foot level of the left leg and unspecified mononeuropathy of left lower limb is granted. REMANDED Entitlement to service connection for Conn's syndrome hypertension, to include as due to exposure to herbicide agents and/or secondary to service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder, is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for anaphylactic sensitivity is remanded. Entitlement to service connection for a respiratory disorder, claimed chronic obstructive pulmonary disorder (COPD), to include as due to exposure to herbicide agents and/or secondary to service-connected PTSD with unspecified depressive disorder, is remanded. Entitlement to service connection for a back disorder is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his disorder manifested by numbness of middle toes of the left foot, currently diagnosed as injury of cutaneous sensory nerve at ankle and foot level of the left leg and unspecified mononeuropathy of left lower limb, is related to his military service. CONCLUSION OF LAW The criteria for service connection for an injury of cutaneous sensory nerve at ankle and foot level of the left leg and unspecified mononeuropathy of left lower limb have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to November 1971, to include service in the Republic of Vietnam from August 1970 to August 1971. He is the recipient of numerous awards and decorations, to include the Combat Infantryman Badge. This matter comes before the Board on appeal from a rating decision issued in June 2015 by a Department of Veterans Affairs (VA) Regional Office. In September 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 90 days for the submission of additional evidence, which was received in November 2021. 1. Entitlement to service connection for a disorder manifested by numbness of middle toes of the left foot. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Veteran contends he has a disorder manifested by numbness of the middle toes of the left foot that resulted from the cellulitis he had in service. In this regard, his service treatment records (STRs) reveal that, in July 1971, he had cellulitis of the dorsum of his left foot that resulted in swelling and pain. The Veteran further reported that, once the swelling subsided, he experienced numbness in the foot that has continued to the present time. In May 2015, the Veteran underwent a VA peripheral nerves examination, at which time the examiner noted that the Veteran had mild incomplete paralysis of the internal popliteal (tibial) nerve, but found that his complaints did not correspond to the anatomy of the region. In this regard, he explained that an infection of the dorsum of the foot would not result in nerve injury to areas remote and separate from the site of infection. The examiner also noted that the Veteran indicated that the point of the cellulitis was on the dorsum of the foot between the first and second metatarsal bones, and described numbness involving both plantar and dorsal aspect of toes number 3 and 4 on the left foot. He explained that the innervation of the plantar aspect of the third and fourth toes was by the plantar cutaneous nerves that are a branch of the lateral plantar nerve, which was a branch of the tibial nerve. The examiner further stated that the innervation of the dorsal aspect of the toes was by the intermedial dorsal cutaneous branch of the superficial peroneal nerve. He also noted that the center of the Veteran's cellulitis was in the region of the deep peroneal nerve, which did not innervate the skin of the third and fourth toes. Additionally, the examiner explained that the innervation of the plantar aspect of the toes was by a nerve that was on the plantar aspect of the foot and separated by all fascia and skeletal structures of the foot from the area involved in the cellulitis. He also noted that there was no complaint of numbness in his STRs. Thus, the examiner concluded that the symptoms presented by the Veteran were inconsistent with any possible sequela of his treated cellulitis and was, therefore, less likely than not to be caused by or a result of the treatment for cellulitis of the left foot during his military service. However, in November 2021, an opinion was received from Dr. J.S., who noted that he saw the Veteran in October 2021, and had a diagnosis of injury to a nerve to his left foot. Specifically, he noted the medical codes for injury of cutaneous sensory nerve at ankle and foot level of the left leg (initial encounter) and unspecified mononeuropathy of left lower limb. He explained that such occurred during the Veteran's military service when he had an injury to the top of his left foot caused by broken bamboo, which led to an infection and swelling, and required hospitalization, treatment, cleaning of the wound, deep probing of the wound, and antibiotics. After the infection subsided and cleared entirely, he had nerve damage affecting the middle toes of his left foot, which had remained numb and caused discomfort to the foot itself. Thus, Dr. J.S. concluded that the Veteran's diagnosis was subject to presumptive service connection and was as likely as not caused by his military service. As both the VA examiner and Dr. J.S. are competent medical professionals and considered all relevant facts, their opinions are entitled to equal probative weight. Therefore, as the evidence is in relative equipoise, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed injury of cutaneous sensory nerve at ankle and foot level of the left leg and unspecified mononeuropathy of left lower limb is related to his military service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Consequently, service connection for such disorder is warranted. REASONS FOR REMAND 2. Entitlement to service connection for Conn's syndrome hypertension, to include as due to exposure to herbicide agents and/or as secondary to service-connected PTSD and unspecified depressive disorder. The Veteran is seeking service connection Conn's syndrome hypertension. Specifically, he testified that his hypertension had its onset soon after service as a result of in-service exposure to herbicide agents and was indicative of the subsequent development of Conn's syndrome. In the alternative, he alleges that such disorder is caused or aggravated by his service-connected PTSD and unspecified depressive disorder as one of his psychiatrists indicated that such disability could contribute to elevated blood pressure readings. In this regard, while the Veteran reported being treated for hypertension within a year of his separation from service, his earliest post-service treatment records on file indicate that he had high blood pressure in November 1991, and subsequent treatment records reveal that he was treated for such disorder throughout the appeal period. Additionally, in a March 2018 letter, Dr. K.F. noted that the Veteran had a diagnosis of primary hyperaldosteronism (Conn's syndrome) with refractory hypertension and hypokalemia. He also noted that exposure to Agent Orange has been presumptively linked to many disorders, including endocrinopathies. In this regard, Dr. K.F. explained that endocrinopathies are disorders of the function of an endocrine gland and are included in the list of chronic diseases in 38. C.F.R. § 3.309(a), which are subject to the presumptive service connection provisions of 38 C.F.R. § 3.307. Specifically, he noted that hyperaldosteronism or Conn's Syndrome was an adrenocortical disorder caused by excessive secretion of aldosterone and characterized by headaches, hypertension, hypokalemia, and hypokalemic alkalosis. He also explained that aldosterone was produced in the adrenal cortex, which was part of the endocrine system. Thus, he concluded primary hyperaldosteronism or Conn's syndrome was an endocrinopathy and subject to presumptive service connection. Additionally, in an April 2018 letter, Dr. S.A. noted that, in 2010, he diagnosed the Veteran with primary hyperaldosteronism (Conn's syndrome) when he presented with difficult to control hypertension and hypokalemia. He also noted that Conn's syndrome was an endocrinopathy affecting the adrenal gland resulting in excess secretion of adrenal hormone causing various effects, which included difficult to control blood pressure, leg edema, and low potassium. Thus, given the foregoing, the Board finds that a remand is necessary to obtain an opinion to determine whether the Veteran's currently diagnosed Conn's syndrome hypertension manifested to compensable degree within one year of his discharge from service and/or is related to his in-service exposure to herbicide agents, or service-connected PTSD and unspecified depressive disorder. 3. Entitlement to service connection for left ear hearing loss. The Veteran contends he has left ear hearing loss due to in-service noise exposure coincident with his combat service in Vietnam. In this regard, the Board finds his statements regarding in-service noise exposure to be competent and credible as such is consistent with his combat service and his military occupational specialty as light weapons infantry. Additionally, his STRs reveal that, in September 1970, he complained of hearing loss in the left ear for one and a half weeks and, at his September 2021 Board hearing reported that, while the results are unavailable, undergoing two audiometric tests within one year of separation that showed decreased hearing acuity in the left ear. In May 2015, the Veteran underwent a VA audiological examination, at which time left ear hearing loss for VA purposes was diagnosed. However, the examiner opined that such disorder was not at least as likely as not caused by or a result of an event in military service. In support thereof, she noted that there was no evidence of hearing loss or reports of hearing impairment during service, and the Veteran had normal hearing during his July 1969 entrance examination and his October 1971 separation examination. The examiner further explained that there was no scientific basis for delayed-onset hearing loss due to noise exposure nor were there significant changes in hearing thresholds based on periodic physical examinations. Thus, she concluded that, since there were no significant changes in hearing thresholds greater than normal variability, it was less likely as not the current hearing loss was caused by or the result of noise exposure. In September 2015, the Veteran was afforded another VA audiological examination at which time the examiner opined that his currently diagnosed left ear hearing loss was not at least as likely as not caused by or a result of an event in military service. In support thereof, she also reasoned that the Veteran's July 1969 entrance and October 1971 separation examinations showed normal hearing, and he denied hearing loss or difficulty hearing at the time of the latter examination. The examiner further noted that delayed onset hearing losses, secondary to noise exposure, has not been scientifically proven to occur. Thus, she concluded that, based on the induction and separation examinations showing normal hearing acuity, it was her opinion that the Veteran's current left ear hearing loss was less likely than not due to military noise exposure. However, as neither VA examiner addressed the Veteran's lay statements of experiencing hearing loss during and since his military service, to include as documented in his STRs in September 1970, and did not consider the qualifications noted in the Institute of Medicine (IOM) 2005 study that indicated that definitive studies to address delayed onset hearing loss have not been performed and an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure, the Board finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's left ear hearing loss. McCray v. Wilkie, 31 Vet. App. 243 (2019). 4. Entitlement to service connection for anaphylactic sensitivity. The Veteran contends he has anaphylactic sensitivity that is directly related to his military service. Specifically, he alleges he was bit by a spider on his left forearm and, ever since, he had severe reactions to insect bites and bee stings. In this regard, his STRs reveal that, in March 1971, he was riding on a track through the jungle when he was bit on his hand by something. He had hives all over his body and was given Benadryl. In May 2015, the Veteran was afforded a VA skin examination, at which time the examiner noted a diagnosis of allergic hives due to bee sting, but found that he had no stigmata of anaphylaxis. In this regard, the examiner noted that a single episode of hives thought to be due to mosquito or red ant bite while in the military was a specific incident, but he was unsure of the insect responsible for the hives, and there were no medical records regarding subsequent acute anaphylactic sensitivity after his discharge. He further indicated that allergy to hymenoptera envenomation was specific to hymenoptera envenomation, and not caused by or a result of the bite of an ant or mosquito. Thus, he concluded he was unable to determine the type of insect he was bitten by in service without resorting to mere speculation and any opinion on whether he has a current acute anaphylactic sensitivity due to the bite noted in his STRs would be based on pure speculation. However, as the Veteran has maintained that he was bitten by a spider during service and it is still unclear whether he has a current disability, the Board finds that a remand is necessary to afford him another VA examination addressing such matters. 5. Entitlement to service connection for a respiratory disorder, claimed as COPD, to include as due to exposure to herbicide agents and/or secondary to service-connected PTSD with unspecified depressive disorder. The Veteran originally sought service connection for a respiratory disorder based on in-service tobacco use. In this regard, the Board notes that he testified that he smoked heavily during service as he smoked 3 to 3 and a half packs of cigarettes per day. However, service connection for a disability on the basis that it resulted from an injury or disease attributable to tobacco usage during service is prohibited. 38 U.S.C. § 1103. Nonetheless, the Veteran also contends he developed such disorder in service due to his acknowledged in-service exposure to herbicide agents and has reported that he smoked to calm his nerves. Additionally, his post-service treatment records suggest that he has a current respiratory disorder as a November 2010 CT reflects mild emphysematous disease, a March 2012 private treatment record notes a past history of emphysema, and a February 2015 VA treatment record reflects that he had chronic cough with phlegm since 1973. Thus, the Board finds that a remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of his claimed respiratory disorder. 6. Entitlement to service connection for a back disorder. The Veteran contends he has a back disorder that is directly related to his military service. Specifically, he testified that he injured his back while jumping out of a helicopter with a 100-pound rucksack and felt a snapping in the back with pain during combat service in Vietnam, and such symptoms have continued to the present time. He also stated that such disorder is related to his combat duties as a light weapons infantry. Additionally, his post-service treatment records suggest that he has a current back disorder as evidenced by complaints of back pain, to include treatment for back strain in September 1997 an acute posterior right thoracic strain in February 2013. Thus, the Board finds that a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of his claimed back disorder. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this Remand, to an appropriate VA clinician in order to obtain an opinion addressing the etiology of the Veteran's Conn's syndrome hypertension. Following a review of the record, the examiner should address the below inquiries: (A) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's Conn's syndrome hypertension manifested to a compensable degree within one year of the Veteran's service discharge in November 1971, i.e., by November 1972? If so, please describe the manifestations. In this regard, please consider and discuss the Veteran's testimony that he was treated for hypertension within one year of his separation from service and his treatment providers indicated that his hypertension was due to his Conn's syndrome. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed Conn's syndrome hypertension is related to his acknowledged in-service exposure to herbicide agents? The examiner is advised that his/her rationale cannot be based solely on the fact that VA has not included Conn's syndrome on the list of diseases acknowledged to be presumptively related to herbicide agents. In other words, the Board needs an opinion as to the likelihood that the Veteran's Conn's syndrome is related to his in-service exposure to herbicide agents despite the fact such is not included on the presumptive list. (C) Is it at least as likely as not that (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed Conn's syndrome hypertension is caused or aggravated by his PTSD with unspecified depressive disorder? In offering such opinion, please consider the Veteran's report that one of his psychiatrists indicated that such disability could contribute to elevated blood pressure readings. For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this remand, to the September 2015 VA examiner who addressed the etiology of the Veteran's left ear hearing loss, or an appropriate substitute if she is unavailable, for an addendum opinion. Following a review of the record, the examiner should address the below inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current left ear hearing loss had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service noise exposure, to include coincident with his combat service? In this regard, the examiner should consider and discuss the September 1970 STR, in which the Veteran complained of hearing loss in the left ear for one and a half weeks. (B) Did the Veteran's left ear hearing loss manifested within one year of his active duty service discharge in November 1971, i.e., by November 1972? If so, please describe the manifestations. In offering the foregoing opinions, the examiner must consider and discuss the Veteran's statements of record regarding the onset and continuity of symptomatology of his left ear hearing loss, to include his report that, while the results are unavailable, he underwent two audiometric tests within one year of separation that showed decreased hearing acuity in the left ear. The examiner should also discuss the qualifications noted in the IOM 2005 report that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and "definitive studies to address this issue have not been performed," and the notation that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure," which may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss. The examiner is further advised that the basis for a negative opinion must not be based solely on the lack of evidence of left ear hearing loss for VA purposes in the Veteran's STRs or a lack of medical records demonstrating a continuity of care after service. A rationale for any opinion offered should be provided. 3. The Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his claimed anaphylactic sensitivity. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Please identify all of the Veteran's currently diagnosed anaphylactic disorders. In this regard, please consider and discuss the Veteran's contention that he has anaphylactic sensitivity to insect bites and bee stings. (B) For each identified anaphylactic disorder, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service, to include his documented in-service March 1971 insect bite, which he maintains was from a spider? In offering such opinions, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's STRs are silent as to any anaphylactic disorder, or complaints thereof, and/or a lack of medical records demonstrating a continuity of care after service. A rationale for any opinion offered should be provided. 4. The Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his claimed respiratory disorder. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Please identify all of the Veteran's currently diagnosed respiratory disorders, to include COPD and emphysema. (B) For each identified respiratory disorder, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service, to include his acknowledged in-service exposure to herbicide agents? The examiner is advised that his/her rationale cannot be based solely on the fact that VA has not included the respiratory disorder on the list of diseases acknowledged to be presumptively related to herbicide agents. In other words, the Board needs an opinion as to the likelihood that the Veteran's respiratory disorder is related to his in-service exposure to herbicide agents despite the fact such is not included on the presumptive list. (C) For each identified respiratory disorder, is it at least as likely as not that (i.e., a 50 percent or greater probability) that such disorder is caused or aggravated by his PTSD with unspecified depressive disorder? In this regard, he or she should consider the Veteran's report that he smoked to "calm his nerves." For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 5. The Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his claimed back disorder. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Please identify all of the Veteran's currently diagnosed back disorder. (B) For each identified back disorder, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service, to include jumping out of a helicopter with a 100-pound rucksack during combat and/or his combat duties as light weapons infantry? In offering such opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's STRs are silent as to any back disorder, or complaints thereof, and/or a lack of medical records demonstrating a continuity of care after service. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.