Citation Nr: 23040902 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 19-17 372 DATE: July 26, 2023 ORDER Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to service connection for aortic aneurysm, to include as secondary to service-connected coronary artery disease (CAD), is denied. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during his service. 2. Shortly before discharge, the Veteran developed symptoms consistent with early onset peripheral neuropathy of all four extremities, which continued until his death. 3. The evidence of record does not support a finding that the Veteran's aortic aneurysm started during service, is related to service or is due to service-connected coronary artery disease (CAD). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for aortic aneurysm, to include as secondary to service-connected coronary artery disease (CAD), are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from October 1957 to October 1960 and from May 1962 to January 1971, to include service in the Republic of Vietnam. See DD Form 214. The Veteran passed away in July 2019. See August 2019 Death Certificate. The appellant is his surviving spouse, and as of October 2019, substitution has been granted in these matters. See October 2019 Appeal Substitution Review. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In April 2021, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The Board previously remanded the appeal in June 2021 and December 2021. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107; 38 C.F.R. § 20.902(c). Service Connection Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be awarded on a secondary basis if a claimant has a disability that is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). A veteran with herbicide agent exposure while in service may also be entitled to presumptive service connection for certain enumerated diseases, including early onset peripheral neuropathy. 38 C.F.R. § 3.309 (e). Notably, aortic aneurysm is not a disease associated with exposure to herbicide agents. Id. Finally, when determining whether service connection is warranted, VA is responsible for determining whether the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). The Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance. Id. 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Prior to his death, the Veteran claimed service connection as secondary to coronary artery disease. See September 2016 VA Form 21-526EZ. The appellant contends that the Veteran's peripheral neuropathy affecting all four extremities had its onset during service and testified as to the Veteran's symptoms during service and shortly after discharge. See April 2021 Hearing Transcript. Specifically, the appellant testified that immediately after his military discharge she and the Veteran got married and she could vividly recall the Veteran could not sleep with his feet covered because it would cause him to experience a burning feeling, as they were very sensitive to the touch. Id. Additionally, appellant testified that the Veteran did not have a good balance, that he complained of his feet hurting and giving him a tingling feeling, and experience leg and foot twitching. Id. C.R., a witness for the Veteran, also corroborated appellant's testimony, and testified that his leg and foot would go sideways, and it progressively worsened until the Veteran could no longer walk unassisted. Id. The appellant testified that these symptoms were present before the Veteran's military discharge and continued since. Id. Specifically, appellant testified that less than a year from his discharge, the Veteran was already experiencing numbness, tingling feeling, the inability to sleep with his feet covered. Id. In January 2022, the appellant was last afforded a VA opinion on the peripheral neuropathy of all four extremities. The VA examiner opined that the lay statements from the Veteran's spouse convey onset of symptoms shortly after return from Vietnam. See January 2022 VA Opinion. In August 2021, a VA examiner also opined that the Veteran's symptoms after service were consistent with early onset peripheral neuropathy. See August 2021 VA Opinion. At the end of his first period of service, during his October 1960 separation exam, the Veteran listed foot trouble among his active conditions. See August 2003 Service Treatment Record. Here, the Veteran was exposed to herbicide agents during his service in the Republic of Vietnam. See DD Form 214. Additionally, appellant testified as to the Veteran's symptoms of early onset peripheral neuropathy. See April 2021 Hearing Transcript. The Board finds the appellant's testimony credible and assigns it a high probative value. Finally, the January 2022 and the August 2021 VA examiners opined that the Veteran's symptoms, as reported by appellant, are consistent with symptoms of early onset peripheral neuropathy. As a result, the Board finds the competent evidence supports a diagnosis of early onset peripheral neuropathy, a disease presumptively associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Considering the Veteran has been diagnosed with early onset peripheral neuropathy, a disease associated with exposure to herbicide agents, and resolving any reasonable doubt in favor of appellant, the Board finds that service connection for peripheral neuropathy of all four extremities has been established on a presumptive basis. 38 C.F.R. § 3.309(e). See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). In conclusion, entitlement to service connection for peripheral neuropathy of all four extremities is granted. 5. Entitlement to service connection for aortic aneurysm, to include as secondary to service-connected coronary artery disease (CAD), is denied. The appellant contended that the Veteran's service-connected coronary artery disease (CAD) caused or aggravated his aortic aneurysm. See April 2021 Hearing Transcript. Particularly, appellant presented some medical articles suggesting that some of the common causes of aortic aneurysm include atherosclerosis and hypertension, and that a common cause of CAD is atherosclerosis, ultimately suggesting a link between aortic aneurysm and CAD. Id; see also April 2021 Correspondence. Turning to the first element of direct service connection, which is the existence of a present disability, the Veteran was diagnosed with aortic aneurysm in June 2015. See January 2021 VA Opinion. Turning to the second and third element of service connection, namely an in-service event, injury or disease and a causal link with the Veteran's current disability, the Veteran did not assert, nor the evidence suggests, that his aortic aneurysm had its onset during service or is related to his service. Furthermore, in January 2021, the Veteran was afforded a medical opinion from a VA examiner. Ultimately, after reviewing the Veteran's claims and the supporting evidence, the VA examiner found that the Veteran's aortic aneurysm was less likely related to service because it did not manifest during service, but only approximately 40 years after service. See January 2021 VA Opinion. Additionally, the VA examiner opined that the reviewed literature does not show a direct causal relationship between aortic aneurysm and exposure to herbicide agents during service. Id. The relevant and competent evidence demonstrates persuasively that the Veteran's aortic aneurysm is not directly related to his service. The benefit of the doubt doctrine is not applicable to the claim of service connection for aortic aneurysm on a direct basis. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). With respect to the claim of aortic aneurysm as secondary to the service-connected coronary artery disease (CAD), the VA examiner opined that the supporting evidence linking the atherosclerosis and CAD to the aortic aneurysm, while show a correlation between common causes, it does not show causation. Id. More specifically, the VA examiner found that while atherosclerosis is a common cause of both CAD and aortic aneurysm, the submitted medical articles do not show a causal relationship between the two diseases. Id. The VA examiner, therefore, found that CAD did not cause or aggravate the aortic aneurysm and provided a negative opinion on the secondary service connection theory of entitlement. Id. Furthermore, the VA examiner stated that while in 1990 the Veteran had a three-vessel-coronary artery bypass graft (CABG), the CABG improves blood flow to the heart and is less likely to be a risk factor for aortic aneurism. Id. The Board acknowledges the Veteran's statement regarding his belief that his aortic aneurysm was secondary to his CAD. See June 2019 VA Form 9. However, whether certain symptoms can be related to a diagnosis is a complex medical determination that requires medical expertise and cannot be established by lay evidence. Since the record does not show that the Veteran or the appellant received medical training to make such determination, the Board cannot assign probative weight to their lay statements. Similarly, although a lay person is competent to report what a medical expert has told him, the Veteran or the appellant have not reported that a medical expert has related his aortic aneurysm to his CAD disability. Thus, there is no competent lay evidence of record to support a secondary service connection theory of entitlement. Since the January 2021 opinion adequately considered the Veteran's contentions and provided a clear and comprehensive rationale as to whether the Veteran's claim of aortic aneurysm was caused or aggravated by the service-connected CAD, the Board assigns it high probative value. In conclusion, the evidence demonstrates persuasively that the Veteran's aortic aneurysm was not caused or aggravated by his service-connected CAD. The benefit of the doubt doctrine is not applicable to the claim of service connection for aortic aneurysm on a secondary basis. Lynch, 21 F.4th at 781-82. Even though service connection could not have been established on a presumptive, direct, or secondary basis, the Board inquiry does not end here. On August 10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). In pertinent part, the PACT Act extends a presumption of service connection for hypertension as associated with exposures to certain herbicide agents for veterans with service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See PACT Act, Pub. L. No 117-168, § 403(d)(2) (2022); see also 38 U.S.C. § 1116, as amended by Public Law 117-168. The January 2021 VA examiner confirmed that the Veteran was diagnosed with hypertension, and that hypertension is a risk factor for aortic aneurysm. See January 2021 VA opinion. When a claim is pending and evidence demonstrates that the claimed condition is caused by a disability that may be associated with service, VA generally must "investigate the possibility" of secondary service connection. DeLisio v. Shinseki, 25 Vet. App. 45, 55 (2011). If the causal disability is, in fact, related to service, the pending claim is considered to reasonably encompass claim for the causal disability as well, such that a claimant need not file a separate claim for benefits for the causal disability. Id. The Board, therefore, will explore the Veteran's entitlement to service connection for hypertension pursuant to the PACT Act, and entitlement to service connection for aortic aneurysm as secondary to hypertension. Based on 38 U.S.C. § 7104(c), the Board is be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. On October 21, 2022, the VA Secretary approved guidance for processing claims and appeal for disability compensation and dependency and indemnity compensation (DIC) involving presumptive conditions following the enactment of the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which in pertinent part applies to all claims pending before the Board. Based on this binding guidance, the Secretary interpreted the Pact Act as to: 1) require VA to apply the Nehmer consent decree processes to claims related to service-connection presumptions that existed before enactment of the PACT Act, but; 2) prevent VA from applying the Nehmer consent decree processes to claims for conditions relating to service-connection presumptions created on or after the Pact Act's enactment. Nehmer consent decree processes pertain to Veterans or appellants who are "Nehmer class members," which include: (i) A Vietnam veteran who has a covered herbicide disease; or (ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816. Based on the October 2022 binding guidance above, the Board is prevented from expanding and granting retroactively the claim for entitlement to service connection for hypertension under the Pact Act. As a result, since the Veteran cannot be service connected for hypertension, entitlement to service connection for aortic aneurysm secondary to the hypertension is legally insufficient and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In conclusion, the relevant evidence of record does not support a finding that the Veteran's aortic aneurysm was either related to service or was caused or aggravated by the Veteran's service-connected CAD. Thus, entitlement to service connection for aortic aneurysm has not been established. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fiorito, 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.