Citation Nr: 1601173 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 10-31 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for chronic kidney disease. 3. Entitlement to service connection for atrial fibrillation. 4. Entitlement to service connection for congestive heart failure, the cause of the Veteran's death. 5. Entitlement to service connection for a bilateral knee disability. 6. Entitlement to service connection for a restrictive lung disability, including pulmonary vascular disease. 7. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from September 1962 to October 1966. He passed away in March 2013. His wife has been substituted as the claimant in the Veteran's ongoing service connection claim, which has been merged with her claim for service connection for the cause of the Veteran's death. These appeals to the Board of Veterans' Appeals (Board) are from September 2008 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2015, the Appellant had a personal hearing with the undersigned VLJ. The Board observes that it is unclear whether the RO adjudicated a claim for dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. Ordinarily, the Board would refer this issue for proper development and adjudication by the RO; however, since service connection for the cause of the Veteran's death is being granted, the issue of entitlement to DIC under section 1318 is mooted, and need not be discussed any further. The issues of entitlement to service connection for a bilateral knee disability, a restrictive lung disability, and for obstructive sleep apnea are REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. In resolving all doubt in his favor, the Veteran's hypertension, chronic kidney disease, and atrial fibrillation were caused by service-connected diabetes. 2. The Veteran died from congestive heart failure. In resolving all doubt in his favor, congestive heart failure was caused by his service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection are met for hypertension, chronic kidney disease, and atrial fibrillation. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.303, 3.310 (2015). 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a) (2014). The Veteran asserted his hypertension, chronic kidney disease, and atrial fibrillation are secondary to his service connected diabetes. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The August 2014 VA examiner concluded that these disabilities were not due to diabetes because his diabetes was relatively mild, and controlled by diet. The Veteran's private physician opined in an April 2014 opinion that hypertension, atrial fibrillation, chronic kidney disease, and congestive heart failure were directly caused by the Veteran's diabetes. He indicated the Veteran's diabetes required restricted activities and diet as well as regular injections of insulin. The record confirms that he was taking insulin at least as of early 2008. Accordingly, the evidence is in relative equipoise. Under these circumstances, all doubt is resolved in the Veteran's favor, and service connection for hypertension, atrial fibrillation, and chronic kidney disease is granted. Service connection for cause of death Decisions on entitlement to service connection for the cause of a veteran's death are based on the same statutory and regulatory provisions that govern determinations of service connection. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303 (2015). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that the disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The Veteran's immediate cause of death was congestive heart failure (CHF). No contributing cause was noted. He was not service connected for CHF. His wife contends CHF was caused by his herbicide exposure while serving in Vietnam, or alternatively, that it was caused by his service-connected diabetes. As mentioned above, his private physician opined that CHF was directly caused by diabetes, which he indicated required insulin and regulation of diet and activities. There is no other evidence addressing this question. Accordingly, service connection for the cause of death is granted. ORDER Service connection is granted for chronic kidney disease, atrial fibrillation, and hypertension. Service connection for congestive heart failure, the cause of the Veteran's death, is granted. REMAND The remaining claims require additional development. Medical opinions must be obtained. 38 U.S.C.A. § 5103A(a). It appears that requests for opinion was made in June 2015, but it is not clear whether they were obtained. In regard to his bilateral knees, the Veteran was diagnosed with arthritis of both knees via X-ray in October 2007. He alleged that his service-connected disabilities caused him to gain weight that led to his arthritis. This theory should be addressed. In regard to a restrictive lung disability, he and his wife alleged that it was due to herbicide exposure. A medical opinion regarding these theories must be obtained. In regard to sleep apnea, he and his wife alleged that sleep apnea was due to herbicide exposure, or a result of his other service-connected disabilities. These theories must be addressed. Accordingly, the case is REMANDED for the following action: 1. If medical opinions were obtained in June 2015, obtain them and associate them with the claims file. 2. After receipt of records, forward the claims files to an appropriate physician for an opinion on whether it is as likely as not (50 percent or greater probability) that the Veteran's bilateral knee arthritis is related to service, either by an incident in service, or incepting within a year following separation from service (so, in October 1967), or by being caused or aggravated (that is, a permanent increase in severity beyond the normal progression of the disability) by another service-connected disability. He was service connected for diabetes, hearing loss, atrial fibrillation, chronic kidney disease, hypertension, and congestive heart failure. He alleged that his disabilities led to weight gain that caused his knee arthritis. The examiner is also asked to comment on this theory. All opinions are to be accompanied by explanatory rationale. 3. Forward the files to an appropriate physician for an opinion on whether the Veteran's restrictive lung disabilities were as likely as not (50 percent or greater probability) related to herbicide exposure in service. If the Veteran had any diagnoses consistent with asbestos exposure, please provide an opinion on whether it is as likely as not that these were related to service. The Veteran was confirmed to have served in Vietnam, therefore is presumed to have been exposed to herbicides. Please conduct a search of the relevant medical literature for a connection between his diagnoses and herbicide exposure. The examiner is also asked to provide an opinion on whether his lung diagnoses were caused or aggravated (that is, permanently increased in severity beyond the normal progression of the disease) by any of his service-connected disabilities. He was service connected for diabetes, hearing loss, atrial fibrillation, chronic kidney disease, hypertension, and congestive heart failure. All opinions are to be accompanied by explanatory rationale. 4. Forward the files to an appropriate physician for an opinion on whether it is as likely as not (50 percent or greater probability) that sleep apnea is caused to service. The Veteran and his wife alleged that it was caused by exposure to herbicides. An opinion should also be obtained as to whether it was caused or aggravated (that is, permanently increased in severity beyond the normal progression of the disease) by any of his service-connected disabilities. He was service connected for diabetes, hearing loss, atrial fibrillation, chronic kidney disease, hypertension, and congestive heart failure. All opinions are to be accompanied by explanatory rationale. 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 6. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Appellant and her representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs