Citation Nr: 23030393
Decision Date: 05/24/23	Archive Date: 05/24/23

DOCKET NO. 16-30 903
DATE: May 24, 2023

ORDER

Entitlement to service connection for a heart disability, diagnosed as coronary artery disease, is granted.

Service connection for bruxism, claimed as grinding of teeth, secondary to service-connected posttraumatic stress disorder (PTSD), is granted.

Entitlement to service connection for a right leg neurological disability, to include as secondary to a service-connected disability, is denied.

Entitlement to service connection for a left leg neurological disability, to include as secondary to a service-connected disability, is denied.

Entitlement to service connection for an ear disability, to include as secondary to a service-connected disability, is denied.

Entitlement to service connection for anemia, to include as secondary to a service-connected disability, is denied.

REMANDED

Entitlement to service connection for a right foot disability, to include as secondary to a service-connected disability, is remanded.

Entitlement to service connection for a left foot disability, to include as secondary to a service-connected disability, is remanded.

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded.

FINDINGS OF FACT

1. The Veteran is presumed to have been exposed to herbicide agents during his Vietnam Era service.

2. The Veteran has coronary artery disease (CAD) that is presumed to be related to his exposure to herbicide agents in service.

3. The Veteran's bruxism is proximately due to his service-connected PTSD.

4. The Veteran's right and left lower extremity neurological disability, diagnosed as peripheral neuropathy, was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, including exposure to toxic herbicide agents, and it was diagnosed years before the Veteran's diagnosis of diabetes and there is no evidence that it has been aggravated by his service-connected diabetes.

5. The Veteran's ear disability, diagnosed as benign paroxysmal positional vertigo (BPPV), was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, including exposure to toxic herbicide agents, and it was diagnosed years before the Veteran's diagnosis of diabetes and there is no evidence that it has been aggravated by his service-connected diabetes.

6. The Veteran's anemia, diagnosed as pernicious anemia or other Vitamin B12 deficiency anemia, was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, including exposure to toxic herbicide agents, and it was diagnosed years before the Veteran's diagnosis of diabetes and there is no evidence that it has been aggravated by his service-connected diabetes.

CONCLUSIONS OF LAW

1. The criteria for service connection for a heart disability, diagnosed as CAD, are met.  38 U.S.C.§§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for bruxism, secondary to service-connected PTSD, have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.381, 4.150.

3. The criteria for service connection for right and left lower extremity neurological disability, to include neuropathy, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

4. The criteria for service connection for an ear disability, diagnosed as BPPV, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

5. The criteria for service connection for anemia, diagnosed as pernicious anemia or other Vitamin B12 deficiency anemia, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from December 1967 to July 1971 and March 1982 to April 1982, with service in the Republic of Vietnam from July 1970 to July 1971.  The Board thanks him for his service to our country.

These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ).  

The Board remanded this appeal in January 2019, June 2021 and July 2022 to obtain updated treatment records, afford the Veteran VA examinations and obtain medical nexus opinions as to his claimed disabilities.  After completion of the development ordered in the Board remand, a January 2023 rating decision granted service connection for hypertension associated with herbicide exposure.  As such, the claim of service connection for hypertension is considered to be fully resolved and no longer on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).  In addition, after review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the Board remands and no further action is necessary as to the claims of entitlement to service connection for a heart disability, bruxism, bilateral lower extremity neurological disabilities, an ear disability, and anemia.  See Stegall v. West, 11 Vet. App. 268 (1998).  The claims of service connection for right and left foot disabilities and sleep apnea will be addressed below, in the remand section of this decision.  

In this regard, it is noted that the Veteran has not undergone a dental examination in connection with his claim of service connection for bruxism and an opinion as to the nature and etiology of this disability has not been obtained, as instructed in the most recent, July 2022, Board remand.  In a January 2023 communication, the Veteran's attorney argues the Veteran has shown good cause for having missed the scheduled examination and requests the examination be rescheduled.  However, given the fully favorable resolution of his appeal as to the claim of service connection for bruxism, the Board will decide this claim based upon the available evidence without prejudice to the Veteran.  

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992).  To establish a right to compensation for a present disability, the evidence 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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

Service connection may also be granted for chronic disabilities, including cardiovascular renal disease and organic diseases of the nervous system (including peripheral neuropathy) if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection.  38 C.F.R. § 3.303(b).  The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic conditions listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity to symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).

In addition, a veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents.  38 C.F.R. §§ 3.307, 3.309.  Because the Veteran in this case served in Vietnam during the Vietnam Era, exposure to herbicide agents has been conceded.

If a veteran was exposed to an herbicide agent during active service, certain diseases, including ischemic heart disease (IHD) and early onset peripheral neuropathy, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service.  38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).  For early-onset peripheral neuropathy, the regulation applies where it became manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service.  38 C.F.R. § 3.307(a)(6)(ii).

Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury.  See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

A claimant bears the evidentiary burden to establish entitlement to the benefit sought.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other.  Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to service connection for a heart disability is granted.

The Veteran contends that he has heart disease related to his military service, including due to herbicide exposure while he was in Vietnam.  See January 2016 Addendum to Veteran's Supplemental Claim for Compensation.

As noted above, the evidence shows the Veteran served in the Republic of Vietnam from July 1970 to July 1971 and is thus presumed to have been exposed to herbicide agents to include Agent Orange.  

Review of the record shows the Veteran has undergone three VA heart conditions examinations, in April 2016, December 2019, and February 2022.  The April 2016 and December 2019 examination reports (and December 2019 opinion) show no diagnosis of a heart condition and the February 2022 examination report shows diagnoses of carotid sinus hypersensitivity and implanted cardiac pacemaker in 2020 (no IHD or CAD was diagnosed).  In addition, VA has also obtained two medical advisory opinions, in the April 2022 and August 2022, which note the Veteran has been diagnosed with nonobstructive coronary artery disease, and a November 2022 Addendum opinion.  The April 2022 clinician noted "no evidence of ischemic heart disease" and opined that there is "[n]o evidence CAD has been permanently aggravated beyond its natural progression."  The August 2022 clinician explained that the "Health and Medicine Division (formally known as the Institute of Medicine) of the National Academy of Sciences, Engineering, and Medicine concluded in its report 'Veterans and Agent Orange: Update 2008' released July 24, 2009, that there is 'suggestive but limited evidence that exposure to Agent Orange and other herbicides used during the Vietnam War is associated with an increased chance of developing ischemic heart disease (https://www.publichealth.va.gov).  Therefore it is at least as likely as not that the Veteran's diagnosed non-obstructive coronary artery disease is etiologically related to the Veteran's presumed exposure to herbicides during service."  However, in a November 2022 Addendum opinion, the clinician clarified that "review of records did not show enough medical evidence to support heart condition that relates to IHD."  The examiner noted the medical literature referenced above and explained that review of the record showed IHD risk due to Agent Orange exposure; however, no diagnosis has been established.  The examiner also noted the finding of carotid sinus hypersensitivity and implantation of a cardiac pacemaker in 2020 and opined that the finding of "first degree AV block on ECG ... was the indication for implanted cardiac pacemaker and not IHD."  

Based on the above, the evidence (specifically, the April 2022 and August 2022 medical advisory opinions) shows the Veteran has been diagnosed with CAD which is listed as an ischemic heart condition under the applicable portion of 38 C.F.R. § 3.307 and applied in § 3.309 for Veterans presumed exposed to herbicide agents during active service in the Vietnam era.  Specifically, IHD includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including CAD (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).

The Board notes that the April 2022 and August 2022 VA examination reports include the opinion that there is no evidence the Veteran has IHD or heart disease related to his military service (and earlier April 2016, December 2019, and February 2022 VA examination reports and opinions found no diagnoses of IHD/CAD).  However, for the purposes of the analysis in this decision, the Board must note that the applicable provisions of 38 C.F.R. § 3.309(e) expressly provide that "ischemic heart disease" includes "coronary artery disease" as a "disease associated with exposure to certain herbicide agents."  

Here, the Veteran is presumed to have been exposed to herbicide agents during his active service in Vietnam and, as noted above, he has a current diagnosis of CAD.  Moreover, as VA treatment records show the Veteran's CAD requires continuous medication (he is prescribed metoprolol succinate for his heart) and the February 2022 VA heart conditions examination report shows interview-based METs (metabolic equivalents) of a workload of greater than 7.0 METs but not greater than 10.0 METs resulting in breathlessness, the manifestation of his disability is consistent with at least a 10 percent evaluation under the appropriate diagnostic code.  See 38 C.F.R. § 4.119, Diagnostic Code 7005.

Accordingly, and resolving any doubt in favor of the Veteran, the Board finds that service connection for a heart disability, to include CAD, is warranted on a presumptive basis.  See 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e).

2. Service connection for bruxism, as secondary to service-connected PTSD, is granted.

The Veteran asserts that service connection for grinding of teeth is warranted.  Specifically, in an August 2016 VA Form 21-4138, Statement in Support of Claim, it is noted the Veteran asserts that "he has been clenching or grinding his teeth for a long time" and believes it is "related to stress and anxiety related to his PTSD."  Because this decision grants service connection for bruxism as secondary to the Veteran's service-connected PTSD, further discussion of this disability being directly due to service, including exposure to herbicide agents, is not necessary.  

Bruxism is defined as "involuntary, nonfunctional, rhythmic or spasmodic gnashing, grinding, and clenching of teeth (not including chewing movements of the mandible), usually during sleep, sometimes leading to occlusal trauma.  See Dorland's Illustrated Medical Dictionary, 257 (32nd ed., 2012).

In the VA benefits system, dental disabilities are treated somewhat differently from other types of disabilities.  Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the appellant may receive treatment only, and not compensation.  38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161.  Dental disabilities that are compensable are set forth in 38 C.F.R. § 4.150.  These conditions include various problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, or loss of the hard palate.  See 38 C.F.R. § 4.150, Diagnostic Code 9913.  Compensation is also available for the loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis, and is not available in cases where the loss of teeth is a result of periodontal disease since such loss is not considered disabling.

A Final Rule prohibiting bruxism as a stand-alone disability was issued in August 2017 and became effective on September 10, 2017.  See 82 Fed. Reg. 36080, 36081.  The Board also notes that in the Final Rule, VA acknowledged that bruxism may be contemplated as a symptom of craniomandibular disorders, of which temporomandibular disorders under 38 C.F.R. § 4.150, Diagnostic Code 9905, are a subset, and that other symptoms of craniomandibular disorders include anxiety, stress, and other mental disorders.  The Final Rule further noted that VA has determined that secondary service connection for treatment purposes only is warranted for bruxism, both because bruxism is only a secondary condition, not a primary condition, and because its symptoms are already contemplated by the underlying condition.  See 82 Fed. Reg. 36081.  Here, the claim for service connection for bruxism was received in April 2015 (claimed as grinding of teeth); thus, it was pending prior to the September 10, 2017 effective date of the regulation change, so the new regulatory bar against bruxism does not apply to this Veteran's claim.

Private dental treatment records include a March 2006 note that the Veteran "grinds" his teeth.  

A December 2017 VA Oral and Dental Conditions examination report shows a diagnosis of bruxism and includes the opinion that the record shows the Veteran's reported symptoms of bruxism/teeth grinding but "lacks evidence of diagnosis and/or treatment of this issue as it relates to any Mental Health disorder.  Due to the lack of objective evidence, a nexus has not been established."  

In contrast, a January 2020 VA Temporomandibular Disorders (TMD) examination report shows a temporomandibular joint condition diagnosed as bruxism secondary to PTSD.  A January 2020 VA Oral and Dental Conditions examination report shows a diagnosis of loss of teeth (for reasons other than periodontal disease, or other routine dental maladies; due to service-related trauma.)  It is noted X-ray examination showed "multiple missing teeth, broken teeth (grinded down - due to bruxism) intraoral caries noted as well."  After interview and examination of the Veteran and review of his claims file and relevant medical literature, the clinician opined that the Veteran's bruxism is due to PTSD.  The examiner explained that bruxism often results in patients with PTSD because such patients, including the Veteran, "grind their teeth much more than others.  Bruxism has been a key contributor to this condition."  Citing to medical literature, the clinician further explained that "[a]s a result of increased motor activity and neurotransmitter disruptions with follow PTSD, particularly with regard to noradrenalin, serotonin, endogenic opiates, and the hypothalamic-pituitary-adrenal axis, marked manifestations of symptoms and signs of TMD can be expected.  Emotional stress can affect signs and symptoms of temporomandibular dysfunctions by decreasing the patient's physiological tolerance.  An increased level of emotional stress increases the muscle tone not only in the head and neck muscles, but can also increase the level of non-functional muscle activity, such as bruxism and teeth clenching."  

The January 2020 VA examiner also opined that the Veteran's loss of teeth has a "multifactorial cause.  Mainly, it is evident he lost his teeth due to Bruxism causing his teeth to be exposed.  He seems to have bacteria entering the nerves and causing infections which have led to the extractions.  Further, the patient suffer from PTSD, which is an additional factor contributing to this."  Accordingly, the examiner opined that "Bruxism and loss of teeth is at least as likely as not due to PTSD."  

There is both positive and negative evidence with respect to the Veteran's claim; however, the evidence persuasively weighs in favor of finding that the Veteran's bruxism is caused or aggravated by his PTSD.  The January 2020 VA examination report and opinion shows the Veteran has a temporomandibular joint condition, diagnosed as bruxism secondary to PTSD, which has caused his teeth to be exposed, resulting in bacteria entering the nerves and causing infections which have led to the extractions.  The Board finds the January 2020 opinion to be highly probative because the clinician thoroughly discussed the relevant evidence and provided an explanation of rationale supported by reference to medical literature for the conclusion reached.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board finds the December 2017 opinion to have less probative weight because the examiner relied on a "lack of objective evidence" and provided no discussion of the medical literature addressing the intersection between psychiatric symptoms, such as emotional stress, and TMD.  Merely observing "lack of objective evidence" is an insufficient rationale to support this opinion.  As such, the weight of the evidence is at least in equipoise that the Veteran's bruxism is due to his PTSD.

Considering the record in its totality, the Board finds that the evidence supports a finding that the Veteran has a current diagnosis of bruxism that is secondary to his service-connected PTSD.  The evidence demonstrates that the Veteran has a temporomandibular joint condition diagnosed as bruxism secondary to PTSD.  Accordingly, service connection for bruxism is warranted, as secondary to the Veteran service-connected PTSD.

3. Entitlement to service connection for a right leg neurological disability, to include as secondary to a service-connected disability, is denied.

4. Entitlement to service connection for a left leg neurological disability, to include as secondary to a service-connected disability, is denied.

5. Entitlement to service connection for an ear disability, to include as secondary to a service-connected disability, is denied.

6. Entitlement to service connection for anemia, to include as secondary to a service-connected disability, is denied.

The Veteran contends that service connection is warranted for a neurological disability of the right and left lower extremities, claimed as edema and nerve pain; an ear disability manifested by vertigo; and anemia.  He asserts that he has experienced edema and nerve pain in the legs and numbness in his feet related to exposure to toxic herbicide agents during his service in the Republic of Vietnam or, alternatively, secondary to his service connected diabetes, including medication prescribed to treat his diabetes.  In a March 2015 statement forwarded to VA from the office of his United States Senator, the Veteran stated that he had been exposed to Agent Orange while serving in Vietnam in 1970 to 1971, has "had numbness in [his] feet for years," itching in his ears causing him to "constantly use a Q-tip to get inside and scratch" and he is told he is "pre diabetic."  In his April 2015 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, the Veteran's claims include "nerve pain legs," "intense itching both ears," and pernicious anemia. In his February 2016 Notice of Disagreement (NOD), he claimed "balance problems" and recalled having dirt in his ears and "concussive effects of 2,000 to 5,000 pound bombs dropped by US forces" while serving in Vietnam.  In a May 2020 statement, the Veteran recalled his ears used to collect dirt in Vietnam and "Q-tips used to clean them came out almost black."  In later years, he developed itching inside the ears ("it felt as if something was crawling inside") and began having dizzy spells and vertigo.  In addition, the Veteran's attorney has argued that the Veteran's bilateral lower extremity neuropathy, vertigo and anemia are secondary to his diabetes, including Metformin prescribed to treat his diabetes.  See, e.g., Remarks to Supplemental Statement of the Case received from the Veteran's attorney dated in November 2020, April 2022 and January 2023.  

Based on a careful review of all the subjective and clinical evidence, the Board finds that the most probative evidence weighs against finding a neurological disability of the right or left lower extremities, a disability of the ears manifested by itching and/or vertigo or anemia are related to service or secondary to a service connected disability.  

Congress recently enacted the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), effective August 10, 2022.  Pursuant to the PACT Act, the Veteran is a covered veteran who is presumed to have been exposed to herbicides in service. See §§ 302 and 406 (to be codified at 38 U.S.C. §§ 1119 and 1120). The delayed onset peripheral neuropathy, BPPV, and anemia are not on the list of the covered diseases for which presumptive service connection is warranted under the PACT Act. However, the PACT Act also provides that, when a veteran submits a claim for compensation with evidence of a disability and evidence of a toxic exposure risk activity (TERA) during active military service and such evidence is not sufficient to establish service connection for the disability, VA shall provide the veteran with a medical examination under 38 U.S.C. § 5103A(d) and obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity. See PACT Act, § 303 (to be codified at 38 U.S.C. § 1168). However, the PACT Act also provides that such an examination is not warranted if VA has determined that there is no positive association between the disability and herbicide exposure, as is the case with delayed-onset peripheral neuropathy. Further, the Board finds that adequate examinations and opinions that meet the requirements of TERA have been provided with respect to the ear disability and anemia, as discussed further below.

The service treatment records (STRs) for the Veteran's first period of service show he reported a history of dizziness or fainting spells and cramps in legs; however, his ears, drums and neurologic system were clinically normal on November 1967 pre-induction examination (evaluation of the lower extremities and spine, other musculoskeletal structure, is notable for a finding of right knee abnormality and the Veteran has been granted service connection for a right knee disability.)  The Veteran was assessed as clinically normal on evaluation of all spheres on July 1971 service separation examination.  The STRs for the Veteran's second period of service show he was clinically normal on ears, drums and neurological evaluation for enlistment in November 1981.  An April 1982 medical board report notes no lower extremity neurological impairment (and recommended the Veteran be "discharged by reason of 'enlisted in error"' based on a finding of right knee anterior cruciate ligament laxity.)  The Veteran's STRs are otherwise silent as to complaints or findings referrable to right or left lower extremity neurological symptoms, ear problems (dizziness/vertigo) or anemia.  

As to the history of dizziness or fainting spells reported by the Veteran during his November 1967 pre-induction examination, relevant law and regulations provide that a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).  The term "noted" refers to "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. § 3.304(b).  A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown,7 Vet. App. 238, 245 (1994).

When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304.  To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service.  Id.  When the presumption of soundness is not rebutted, the claim must be treated as a direct service connection claim.

The Board finds that there is not clear and unmistakable evidence that the Veteran's right and left leg neurological disability or ear disability, diagnosed as BPPV, pre-existed service (and the Veteran does not argue otherwise).  Therefore, the presumption of soundness has not been rebutted and the claims must be treated as direct service connection claims.

A January 1984 VA examination report in connection with a right knee disability claim includes a findings of normal neurological, ear and hemic system evaluations.  

VA treatment records include a July 1999 report of left thigh numbness, an April 2005 finding of no neurologic deficits on neurologic examination (to determine the cause of the Veteran's falls), July 2005 complaint of left plantar numbness associated with truck driving (the numbness resolved when he had 2 weeks off from his job), and a July 2009 "episode of pain lancinating down buttock into left leg" which was noted to be associated with sciatica in April 2010.  A March 2015 Primary Care Outpatient Note notes that, on review of neurological symptoms, the Veteran reported a 5 year history of numbness in his feet.  

Regarding ear problems, VA treatment records include a December 2003 Primary Care Outpatient Note which shows a history of vertigo starting in March 2003 which had not recurred.  A July 2011 Primary Care note shows the Veteran had been prescribed reduced dose of acetic acid and given instructions on Brandt-Daroff exercises for dizziness and itching in the ears in March 2011.  He subsequently complained of worsening, severe vertigo which was exacerbated by any kind of head turning.  He was prescribed meclizine and a 7 day course of amoxicillin and his vertigo improved.  A March 2015 Primary Care Outpatient Note notes a history of BP (benign positional) vertigo, which had not occurred for more than one year, and "itchy ears."  

Regarding anemia, VA treatment records include an August 1999 Addendum which notes the Veteran has B12 deficiency and he had been told for "years" that he had anemia, but no cause was ever found.  He was started on B12 injections.  

A July 2016 VA treatment report shows the Veteran was diagnosed with diabetes.  These records note the Veteran has neuropathy of the lower extremities and he has "had neuropathy for a while now."  Diabetic neuropathy is included on the Veteran's active problem list, first noted in August 2017.

A July 2016 VA diabetes examination report shows the Veteran was diagnosed with diabetes in 2016 and did not have complications of diabetes.  

A September 2016 VA diabetes examination report includes a finding that the Veteran does not have diabetic peripheral neuropathy.  

A September 2016 VA diabetic sensory-motor peripheral neuropathy examination report shows a diagnosis of peripheral neuropathy of the lower extremities NOS (not otherwise specified).  The Veteran reported the onset of his symptoms was 2006 and began as "lower feet numbness and sensation of heaviness/lead feet."  The examiner noted that neuropathy in the Veteran's lower extremities was present for over 10 years prior to his diagnosis of diabetes, there was "[n]o impaired sugar prior to recent diagnosis," and the endocrinologist was "uncertain" if related to diabetic neuropathy.  

A December 2019 VA diabetic sensory-motor peripheral neuropathy examination report shows a diagnosis of bilateral lower extremity diabetic peripheral neuropathy.  In a September 2020 addendum opinion, the examiner reviewed the Veteran's medical history, noted the Veteran's history of neuropathy for more than 10 years prior to the diagnosis of diabetes (as noted in the September 2016 diabetic peripheral neuropathy examination report) and opined that the Veteran's "neuropathy is less likely than [not] caused by Diabetes.  Baseline preexisting neuropathy is hard to estimate."  

A December 2019 VA hematologic and lymphatic conditions examination report shows a diagnosis of pernicious anemia or other Vitamin B12 deficiency anemia, date of onset in 1999, requiring continuous treatment with high-dose oral tablets.  In a September 2020 addendum, the clinician opined that anemia is at least as likely as not related to service, including herbicide exposure, because a medical article found an "etiologic association between aplastic anemia and pesticide exposure present in herbicides.  Thus herbicide exposure have been studied to result in anemia."  

An August 2020 VA ear conditions examination report shows a diagnosis of BPPV and ear itching.  It is noted the Veteran reported the onset of ear itching in 2010 and stated that "in the military he was exposed to agent orange and other herbicides."  Upon review of the record, the examiner noted the initial onset of ear itching in July 2010, when the Veteran was seen for bilateral ear itching despite use of Cortisporin and clotrimazole.  The Veteran reported onset of vertigo in 2013 and stated he gets the sensation of the room spinning when he quickly rotates his head.  He described the course since onset as "stayed the same."  The clinician opined that the Veteran's claimed ear condition of intense itching both ears and vertigo are less likely than not related service because "there was no relevant medical record about his itching and/or vertigo during military service in relation to herbicide exposure.  He states that he complains of vertigo since 2014.  ...  Although there was a MR [medical record] from 3/5/11 showing a diagnosis of Benign paroxysmal positional vertigo, there was no record of vertigo while in service.  Thus the ear itching and vertigo were more than likely not related to exposure to herbicides while in service."  [Emphasis added]  In a September 2020 addendum, the clinician reiterated the explanation of rationale previously provided.  Given these findings, the Board finds that further development for a TERA examination is not warranted.

A September 2020 VA hearing loss and tinnitus examination report includes the opinion that the "Veteran had a history of vertigo in 2011 which resolved.  Vertigo was 30+ yeas post service.  No complaints of any ear condition were found in the claims file during service.  It is less likely than not that the Veteran's hearing loss is due to an ear condition."  

In an October 2020 Deferred Rating Decision, the AOJ noted the September 2020 addendum opinion for pernicious anemia provided a medical opinion that the Veteran's anemia was related to herbicide exposure and referred to a medical article linking aplastic anemia to pesticides.  Noting that Agent Orange is an herbicide, not a pesticide, and aplastic and pernicious anemia are not the same conditions, the AOJ requested a clarification opinion.  

The October 2020 addendum opinion clarified that the Veteran's pernicious anemia is less likely due to herbicide exposure during service.  The clinician explained that "[t]here is no significant medical literature that provides a link between herbicide exposure and pernicious anemia.  Pernicious anemia is due to B-12 deficiency."  

A September 2021 VA back conditions examination report includes a diagnosis of bilateral lower extremity sciatic radiculopathy.  Notably, the Veteran is not service connection for a back disability.  

A February 2022 VA ear conditions examination report shows a diagnosis of BPPV diagnosed in 2011.  His vestibular conditions were tinnitus and vertigo.  It is noted the Veteran's initial onset of experiencing dizziness was in 2008.  The Veteran reported intermittent dizziness when he closes his eyes or bends over to ties his shoes.  He denied current treatment or follow-up with his primary care provider.  On examination, the left tympanic membrane was normal and there was bulging of the right tympanic membrane.  It is noted the Veteran reported a history of right perforated tympanic membrane.  In an April 2022 opinion, the clinician opined that ear condition, including vertigo, is less likely than not related to service and explained that "[r]eview of the medical record and STR shows no evidence of the diagnosis, treatment or symptoms suggestive of ear pathology including vertigo while on active duty or within one year of separation from military service" and "medical literature does not support DM II (diabetes mellitus type II) causing or permanently aggravating ear pathology."  

A February 2022 VA hematologic and lymphatic conditions examination report shows a diagnosis of pernicious anemia or other Vitamin B12 deficiency anemia.  The course since onset was the Veteran had been prescribed Vitamin B12 injections, the injections had been discontinued (current treatment was daily Vitamin B12 (cyanocobalamin) orally), and the Veteran denied current symptoms or follow-up treatment with is primary care provider.  The clinician opined that the Veteran's pernicious anemia is unrelated to service, including Agent Orange exposure, and explained that there is no evidence in the claims file to support the Veteran was treated for pernicious anemia during service and there is no evidence of chronicity of care; thus, a nexus has not been established.  Regarding secondary service connection, the clinician opined that, as there was no diagnosis of chronic anemia or pernicious anemia during the pendency of the appeal, "the claimed anemia or pernicious anemia is less likely than not (less than 50 percent probability) caused or permanently aggravated beyond its normal progression by Metformin or any other medication used to treat the Veteran's service-connected diabetes mellitus."  This opinion has little to no probative value as to secondary service connection as it was based on an inaccurate factual premise because the record shows the Veteran was diagnosed with pernicious anemia during the appeal period.  

A February 2022 VA peripheral nerves conditions (not including diabetic sensory-motor peripheral neuropathy) examination report shows a diagnosis of peripheral neuropathy, bilateral lower extremities.  The Veteran reported the onset of his symptoms of bilateral foot numbness and pain was in 2002, prior to diagnosis of diabetes mellitus.  After interview and examination of the Veteran and review of his claims file and the relevant medical literature, in April 2022, the clinician opined that the Veteran's bilateral lower extremity peripheral neuropathy was less likely than not related to service or secondary to his service connected diabetes.  The examiner provided the following explanation:  

Review of the medical record and STRs shows no evidence of the diagnosis, treatment or symptoms suggestive of peripheral neuropathy while on active duty or within one year of separation from military service.  No evidence of early onset peripheral neuropathy.  The veteran was diagnosed with idiopathic peripheral neuropathy lower extremities in 2006.  The veteran was diagnosed with idiopathic peripheral neuropathy lower extremities almost 10 years prior to the diagnosis of DM II [diabetes].  Polyneuropathy has a wide variety of causes, ranging from the common, such as diabetes mellitus, alcohol abuse, and HIV infection, to the rare, such as some unusual forms of Charcot-Marie-Tooth (CMT) disease.  It often occurs as a side effect of medication or as a manifestation of systemic disease.  The rate of progression of the polyneuropathy in conjunction with its character (axonal or demyelinating) can help identify its etiology.  The peripheral nerves are susceptible to a variety of toxic, inflammatory, hereditary, infectious, and parainfectious factors that can impair their health and function, leading to the clinical disorder of polyneuropathy.  Unfortunately, there are no simple rules to apply that can reliably distinguish the type of polyneuropathy (e.g., demyelinating versus axonal, chronic versus acute, sensory versus motor) produced by these disease categories.  Diabetic polyneuropathy is generally considered predominantly axonal; however, variable degrees of demyelination are often present, at least electrophysiologically.  The mechanism underlying the development of diabetic neuropathy is extremely complex and likely relates to inflammatory, metabolic, and ischemic effects.  UptoDate 2020

Sustained hyperglycemia affects the long nerves first (feet) and after many years can affect the upper extremities as well, typically in a stocking glove pattern.  Average onset of diabetic peripheral neuropathy is 7.8 years from the time of diagnosis of DM II.  Peripheral neuropathy is nerve damage most often caused by diabetes, hence it is also referred to as diabetic peripheral neuropathy; it is a result of prolonged elevated levels of blood sugar.  Diabetic peripheral neuropathy usually presents as pain in the form of burning, tingling and general weakness in the limbs, usually in the legs, feet or hands.  If not addressed, diabetic neuropathy may develop into complete numbness and atrophy.  UpToDate 2018

An April 2022 medical advisory opinion states that the Veteran's ear condition, including vertigo, is less likely than not related to service because "the medical record and STR shows no evidence of the diagnosis, treatment or symptoms of ear pathology including vertigo while on active duty or within one year of separation from military service.  [M]edical literature does not support DMII causing or permanently aggravating ear pathology."  

In July 2022, the Board found the prior medical nexus opinions opining there was no "permanent" aggravation were not compliant with the Court's holding in Ward v. Wilkie, 31 Vet. App. 233 (2019) ("compensation [is] due for any incremental increase in disability... in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.").  The Board remanded the claims to obtain opinions which use the correct standard for aggravation and provide an adequate explanation of rationale as to secondary service connection.  

In response to the Board remand, an August 2022 medical advisory opinion states that the Veteran's lower extremity peripheral neuropathy was not aggravated beyond its natural progression by the Veteran's service-connected diabetes.  After review of the record, including the Veteran's medical history, the examiner explained that the Veteran has diabetic neuropathy; however, "the record showed normal progression of peripheral neuropathy" and "did not show evidence of aggravation."  The clinician concluded that it is therefore "less likely than not" that the Veteran's right or left "lower extremity peripheral neuropathy was worsened beyond natural progression (aggravated) by his service-connected diabetes mellitus."  

Regarding anemia, an August 2022 medical advisory opinion states that the Veteran's anemia was not aggravated beyond its natural progression by the Veteran's service-connected diabetes.  After review of the record, including the Veteran's medical history, the examiner explained that the Veteran's anemia, diagnosed in 1999, existed prior to his service-connected diabetes mellitus and the record "did not show evidence of aggravation of anemia beyond its natural progression as noted in consultation until 2022.  Therefore it is less likely than not that the Veteran's anemia was worsened beyond normal progression (aggravation by his use of Metformin, or any other medication used to treat his service connected diabetes mellitus.)"  

Regarding ear conditions, including vertigo, an August 2022 medical advisory opinion states that the evidence does not show aggravation of the Veteran's BPPV beyond its natural progression; "[t]herefore, it is less likely than not that the Veteran's benign paroxysmal positional vertigo (BPPV) was worsened beyond normal progression (aggravated) by his service-connected glucose metabolism irregularities related to his service-connected diabetes mellitus."  

It is not in dispute that the Veteran has been diagnosed with bilateral lower extremity peripheral neuropathy, ear condition (vestibular disability, including BPPV), and anemia during the appeal period.  It is also well-established that the Veteran served in Vietnam (from July 1970 to July 1971), is presumed to have been exposed to Agent Orange by virtue of such service and he is service-connected for diabetes based on such exposure.  The critical questions remaining are whether there is competent evidence of a nexus between his service and bilateral lower extremity peripheral neuropathy, ear condition/BPPV and/or anemia or, alternatively, whether his claimed disabilities are secondary to his service-connected diabetes, including medication prescribed to treat his service-connected disability.  

Initially, it is noted that there is no evidence, or allegation, that the Veteran's peripheral neuropathy, ear condition/BPPV and/or anemia was manifested in service or that peripheral neuropathy and/or an ear condition/BPPV, as an organic disease of the nervous system, was diagnosed within a year following his last presumed exposure to Agent Orange in service in July 1971 (or the year following his July 1971 or April 1982 discharge from his two periods of active duty).  His STRs are silent for complaints, history, treatment, diagnosis or findings of lower extremity neurological symptoms, an ear condition manifested by vertigo, and/or anemia.  The initial post-service complaint of neurological symptoms in the left lower extremity was not until July 1999, when the Veteran complained of left thigh numbness, and in the right lower extremity until March 2015, when he reported a 5 year history of numbness in his feet.  Similarly, the initial finding of vertigo is not until 2003 (and the initial finding of anemia is not until 1999), many years after the Veteran's separation from his two periods of active duty service.  Thus, the earliest post-service complaint of any lower extremity neurological symptoms is 28 years after his last [presumed] exposure to Agent Orange, when he served in Vietnam, and 17 years after his second period of service, when he was discharged after less than one month of service based on Medical Board recommendation.  Similarly, the earliest post-service complaint of an ear condition/vertigo is not until 2003, approximately 32 and 21 years after his separation from service in 1971 and 1982.  Consequently, service connection for peripheral neuropathy and/or an ear condition, diagnosed as BPPV, on the basis that either of these disabilities became manifest in service and persisted or on a presumptive basis (either as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a), or based on exposure to herbicide agents under 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e)) is not warranted.  Likewise, continuity of peripheral neuropathy and/or ear conditions symptoms post-service is not shown; thus, service connection based on continuity of symptomatology is not warranted.

The Veteran's proposed theory of entitlement for peripheral neuropathy of his lower extremities is one of presumptive service connection under 38 U.S.C. § 1116 (based on exposure to Agent Orange in Vietnam).  He alleges that he has experienced numbness in his feet for years, and has suggested that such may be due to Agent Orange exposure.  The Board observes that the Veteran's STRs do not show he sought treatment for neurological complaints or neuropathy symptoms, a January 1984 VA examination shows the Veteran was clinically normal on neurological evaluation, and the post-service treatment records do not show lower extremity neurological complaints until 1999, nearly three decades after his last [presumed] exposure to Agent Orange.  Such evidence does not establish that peripheral neuropathy of either lower extremity was manifested in service or to a compensable degree within a year following his last presumed exposure to Agent Orange.  Consequently, his current peripheral neuropathy does not meet the regulatory definition of "early-onset" peripheral neuropathy, and service connection for peripheral neuropathy under the presumptive provisions of 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e) is not warranted.

The Secretary of VA has determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy). Therefore, a TERA examination is not necessary. 38 U.S.C. § 1168(a).

The Board has considered the April 2022 Remarks to Supplemental Statement of the Case Dated April 13, 2022 received from the Veteran's attorney which includes the argument that "[j]ust because [the Veteran] didn't notice symptoms of his neuropathy within one year after service does not mean this exposure didn't cause or aggravate his neuropathy."  While the Veteran may still establish service connection for his bilateral lower extremity peripheral neuropathy by affirmative evidence showing it was incurred in service (see 38 C.F.R. § 3.303(d)), he has presented no such evidence and, in the April 2022 opinion, the clinician opined that there was no evidence of early onset peripheral neuropathy.  In this regard, the Board recognizes that a VA medical opinion as to whether the Veteran's bilateral lower extremity peripheral neuropathy was incurred in service has not been obtained; however, in this case, one is not warranted.  Although there is competent evidence of current diagnosed bilateral lower extremity peripheral neuropathy and presumed in-service exposure to herbicide agents, there is no competent evidence that the claimed disability (peripheral neuropathy of the lower extremities) may be etiologically related to a disease, injury, or event (such as exposure to Agent Orange) in service, and development for a medical opinion as to this aspect of the claim is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006).  The STRs are silent for neurological symptoms in service, there is no diagnosis of a lower extremity neurological disability in service or until many years thereafter, and no medical opinions or other competent evidence has been received even suggesting a relationship between the Veteran's military service and his current bilateral lower extremity neurological disability, initially diagnosed more than 28 years after the Veteran's last presumed Agent Orange exposure.

In addition to his in-service exposure to herbicide agents, the Veteran also contends that his peripheral neuropathy, as well as ear condition/BVVP and anemia, are secondary to his service-connected diabetes, to include Metformin prescribed for treatment of his diabetes.  The competent (medical) evidence that addresses the matter of a nexus between the Veteran's bilateral lower extremity neurological disability, ear condition/BPPV and anemia and his service connected diabetes are VA examinations and opinions which, combined, show that the Veteran's bilateral lower extremity peripheral neuropathy, vertigo and anemia pre-existed his diagnosis of diabetes and were not aggravated by this disability, including medication prescribed to treatment this disability.  

Specifically, regarding lower extremity peripheral neuropathy, the diabetes examination report completed in July 2016 notes the Veteran did not have complications of diabetes and the one completed in September 2016 specifically notes he did not have diabetic peripheral neuropathy.  The diabetic sensory-motor peripheral neuropathy examination reports completed in September 2016 and December 2019 (with addendum opinion completed in September 2020) and peripheral nerves conditions examination report completed in February 2022, combined, show a diagnosis of bilateral lower extremity diabetic peripheral neuropathy and include the opinion that the neuropathy is less likely than not caused by diabetes because the Veteran had a history of neuropathy for more than 10 years prior to the diagnosis of diabetes.  Lastly, the August 2022 medical advisory opinion found that the Veteran's bilateral lower extremity peripheral neuropathy had not been aggravated by his diabetes because the record showed normal progression of peripheral neuropathy with no evidence of aggravation.  

Similarly, regarding ear conditions/BPPV and anemia, the combined VA medical opinions persuasively show that these disabilities were initially manifested prior to the Veteran's diagnosis of diabetes and were not aggravated beyond natural progression by his service-connected diabetes, including medication prescribed to treat this disability.  For example, the August 2020 VA examination report notes the Veteran reported the course of his anemia had "stayed the same" and the August 2022 VA medical opinions include the findings that the evidence does not show his ear condition/BPPV and anemia was worsened beyond normal progression (aggravated) by his service-connected glucose metabolism irregularities related to his service-connected diabetes mellitus or his use of Metformin, or any other medication used to treat his service connected diabetes mellitus.  

Because these opinions, combined, cite to factual data and relevant medical literature in describing the onset and progression of the Veteran's lower extremity peripheral neuropathy, ear condition/BPPV and anemia and are provided by medical professionals competent to offer the opinions, they are probative evidence as to these matters and, in the absence of equally or more probative evidence suggesting that a service-connected disability may have been an etiological factor for the Veteran's development or progression of his current lower extremity neurological symptoms, ear condition/BPPV and/or anemia, they are persuasive.

The Board has considered the argument advanced by the Veteran's attorney in the January 2023 Remarks to Supplemental Statement of the Case Dated December 6, 2022 (January 2023 Remarks), that the new VA opinions (the August 2022 medical advisory opinions) did not properly address aggravation and are not compliant with the decision of the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) ("any incremental increase in disability, any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence" constitutes aggravation).  Specifically, it is argued that "the only rationale the examiner continues to state is that the conditions manifested prior to the primary disability" and the proper "standard is whether the claimed disabilities increased in severity at all by the primary disability, regardless of the date of the diagnoses."  This is not an accurate representation of the August 2022 medical advisory opinions.  As explained above, the clinician providing the August 2022 medical advisory opinions reviewed the Veteran's medical history and found that "the record showed normal progression" of peripheral neuropathy, BPPV and anemia and "did not show evidence of aggravation."  As such, the examiner found there was no "incremental increase in disability" so as to constitute aggravation.  The opinion is compliant with the guidance provided by the Court in Ward and is sufficient for rating purposes as to the claims of service connection for bilateral lower extremity peripheral neuropathy, ear condition/BPPV and anemia.  

The Board has also considered that, in the September 2020 addendum opinion, the clinician opined that anemia is at least as likely as not related to service, including herbicide exposure, because a medical article found an "etiologic association between aplastic anemia and pesticide exposure present in herbicides.  Thus herbicide exposure have been studied to result in anemia."  However, as this opinion is based on an inaccurate factual premise (the Veteran has not been diagnosed with "aplastic" anemia and Agent Orange is not a pesticide), it has no probative value.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative).  Rather, the subsequent October 2020 addendum opinion clarified that the Veteran's pernicious anemia is less likely due to herbicide exposure during service.  The clinician explained that "[t]here is no significant medical literature that provides a link between herbicide exposure and pernicious anemia.  Pernicious anemia is due to B-12 deficiency."  As the October 2020 addendum opinion is consistent with the Veteran's medical history and diagnosis of pernicious anemia or other Vitamin B12 deficiency anemia, is provided by a medical professional and reflects review of the relevant medical literature; it is probative evidence as to this matter.  In the absence of probative evidence to the contrary, it is persuasive.  Further, given this evidence, the Board finds further development for a TERA examination is not warranted.

In support of his claims, the Veteran's attorney has submitted numerous internet medical articles addressing secondary symptoms and disabilities associated with treatment for diabetes, including with prescribed Metformin.  Medical articles or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998).  However, medical articles tend to be general in nature and do not relate to the specific facts in a given claim.  The scientific articles submitted by the Veteran provide general information without a specific connection to the details of his complaints and symptoms.  The articles are not combined with an opinion of a medical professional.  As such, they are less probative and persuasive with respect to the issue of whether his claimed disabilities are related to his service-connected diabetes than the medical opinions discussed above.

The Board finds no reason to question the sincerity of the Veteran in his expression of belief that his bilateral lower extremity peripheral neuropathy, ear condition/BPPV and anemia are related to his exposure to Agent Orange in service and/or secondary to his service-connected diabetes.  However, the etiology and progression of his claimed disabilities (and whether they may be due to an environmental exposure in remote service and/or secondary to a service-connected disability) are complex medical questions.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007).  The Veteran is a layperson and does not profess to have medical knowledge and has not submitted competent supporting medical evidence which is in contrast to the VA examinations and opinions described above.  Therefore, his own opinions have no probative value.

In summary, while the evidence shows the Veteran has the claimed disabilities (bilateral lower extremity peripheral neuropathy, ear condition diagnosed as BPPV and anemia), was exposed to Agent Orange in service and is service connected for diabetes, it does not show that the claimed disabilities are etiologically related to a disease, injury, or event (to specifically include exposure to Agent Orange) in service or are caused or aggravated by a service connected disability.  Therefore, the claims for service connection for peripheral neuropathy of the bilateral lower extremities, an ear condition/BPPV and anemia are denied.  In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence persuasively weighs against these claims, that doctrine is not applicable.  Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for a right foot disability, to include as secondary to a service-connected disability, is remanded.

2. Entitlement to service connection for a left foot disability, to include as secondary to a service-connected disability, is remanded.

3. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded.

Pursuant to the July 2022 Board remand, August 2022 opinions include the findings that the Veteran's right and left foot disabilities and sleep apnea are "at least as likely as not" caused by his obesity.  The foot opinions note that the Veteran "has obesity that existed prior [to] service connected PTSD as noted in 02 November 1967 Pre-induction exam Weight: 196 [and] marked 'Yes' on Foot Trouble, Occ[asional] Foot pain.  Obesity may cause pain in the majority of the foot.  This is caused by extra weight the feet endure while daily activities are being performed. ... Therefore it is at least as likely as not that the Veteran's left [and right] foot disability was caused by his obesity."  Regarding sleep apnea, the clinician explained that "[i]n obese people, fat deposits in the upper respiratory tract narrow the airway; there is a decrease in muscle activity in this region, leading to hypoxic and apneic episodes, ultimately resulting in sleep apnea."

However, an August 2022 opinion also includes the finding that the Veteran's PTSD did not aggravate his obesity.  The examiner explained that the Veteran "has obesity that existed prior [to] service connected PTSD as noted in 02 November 1967 Pre-induction exam Weight: 196" and "the record however did not show evidence of aggravation of obesity beyond it natural progression as noted in consultations until 2022;" therefore, it is less likely than not that the Veteran's service-connected PTSD worsened (aggravated) his obesity beyond natural progression.  See, also, similar finding in February 2022 opinion.  

In the January 2023 Remarks, it is asserted that the opinions obtained are inadequate as to whether the Veteran's service connected disabilities aggravated his obesity because the examiner limited the opinion to the Veteran's service-connected PTSD and "failed to discuss how his other service-connected disabilities," such as his right knee and diabetes, aggravate his obesity.  In support of his claims, the attorney has submitted additional medical articles regarding the association between PTSD and weight gain.  Accordingly, remand is necessary for a supplemental opinion as to whether the Veteran's service connected disabilities, including his service-connected right knee and diabetes, have aggravated his obesity.  In providing the requested opinion, the clinician will have an opportunity to consider the treatise evidence submitted on behalf of the Veteran's claim.  

At this time, the Board intimates no opinion as to the credibility of any lay statements and defers any credibility determinations until final adjudication of the Veteran's claim.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records with respect to the disabilities remaining on appeal.  Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records.

2. After the development in paragraph 1 has been completed to the extent possible, please obtain an addendum medical opinion as to the etiology of the Veteran's right and left foot disabilities and his sleep apnea.  Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran, and using telehealth techniques if possible), the clinician should respond to the following:

a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected disabilities, to specifically include his PTSD, right knee degenerative arthritis, and/or diabetes, including medication (such as Metformin) for treatment of his service-connected disabilities, caused the Veteran's obesity?

b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected disabilities, to specifically include his PTSD, right knee degenerative arthritis, and/or diabetes, including medication (such as Metformin) for treatment of his service-connected disabilities, aggravated (any increase in disability beyond natural progress) the Veteran's obesity?

c) If the answer to (a) or (b) is yes, please provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obesity was a substantial factor in causing his right and/or left foot disabilities and/or his sleep apnea.

d) If the answer to (c) is yes, please provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right and/or left foot disabilities and/or his sleep apnea would not have occurred but for obesity.

In responding to the above, the clinician should consider as necessary the internet medical articles addressing the intersection between (1) PTSD and obesity and (2) diabetes and obesity, submitted by the Veteran in support of his claims.  

Detailed rationale is requested for all opinions provided.  If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K Hughes

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.