Citation Nr: 18145320 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-10 169A DATE: October 26, 2018 ORDER Entitlement to service connection for sarcoidosis is denied. Entitlement to service connection for arthritis, rheumatoid, to include as due to diabetes mellitus or diabetic nephropathy, is denied. REMANDED Entitlement to service connection for hypertensive vascular disease (hypertension), to include as due to diabetes mellitus, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran’s sarcoidosis had its onset in service or manifested within one year of service, was caused by his active duty military service, or was caused or aggravated by a service-connected disability. 2. The preponderance of the evidence weighs against finding that the Veteran’s rheumatoid arthritis had its onset in service or manifested within one year of service, was caused by his active duty military service, or was caused or aggravated by a service-connected disability.   CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sarcoidosis are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for rheumatoid arthritis, to include as due to diabetes mellitus or diabetic nephropathy, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1965. He served honorably in the U.S. Army, including service in the Republic of Vietnam. The Board thanks the Veteran for his service to our country. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2012 (hypertension) and March 2013 (sarcoidosis and rheumatoid arthritis) rating decisions of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Chronic diseases identified under 38 C.F.R. § 3.309(a) (including sarcoidosis and arthritis) may be service connected if noted during service and either (1) are shown in service to be chronic, or (2) manifest with continuity of symptomatology. 38 C.F.R. § 3.303(b). To be shown in service to be chronic, the combination of manifestations must be sufficient to identify the disease entity and there must be sufficient observation to establish chronicity at the time; for example, a manifestation of joint pain is insufficient to permit service connection for arthritis. Id. Alternatively, these chronic diseases are presumptively service connected if they manifest to a degree of at least 10 percent within one year from the date of separation. 38 C.F.R. § 3.307(a)(3). A veteran is not precluded by presumptive laws and regulations from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Any veteran who served in the Republic of Vietnam during the period beginning January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). As the Veteran served in Vietnam during this time, exposure to herbicide agents is presumed. Diseases identified under 38 C.F.R. § 3.309(e) are presumptively service connected as due to exposure to herbicide agents if manifested in a veteran who served in the Republic of Vietnam during the Vietnam era. However, arthritis and sarcoidosis are not included in the list of diseases related to herbicide exposure. Service connection is also warranted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection there must be evidence: (1) of a current disability (for which secondary service connection is sought); (2) of an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain clear conclusions with a reasoned medical explanation based on supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In certain circumstances the VA bears a duty to assist the Veteran. 38 C.F.R. § 3.159. The VA must provide a medical examination or obtain a medical opinion if there exists (1) competent evidence of a current disability; (2) evidence of an in-service event, injury, or disease; and (3) an indication that the current disability may be associated with the Veteran’s service or another service-connected disability; but (4) there is otherwise insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). While the third factor creates a low threshold and evidence “indicating” that a condition “may be” associated with service need be neither medical nor competent, conclusory testimony suggesting the existence of a nexus is not sufficient; a factual basis is required. Id. at 83; see Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). VA exams have not been obtained with respect to the Veteran’s sarcoidosis or rheumatoid arthritis. However, in this instance, the VA is not required to obtain a medical examination because there is no indication that these two conditions may be associated with the Veteran’s service: the Board acknowledges the Veteran’s statements that he believes that there is an association, but the record does not reflect a factual basis indicating that there may be an association. McLendon at 86; Waters at 1277. 1. Entitlement to service connection for sarcoidosis is denied. The Veteran has put forward two theories for service connection for sarcoidosis: service connection linked to in-service exposure to Agent Orange and presumptive service connection for a chronic disease. Service connection is not warranted under any of the bases afforded specifically to certain chronic diseases under 38 C.F.R. § 3.309(a). Although sarcoidosis is a chronic disease contemplated under the regulation, the Veteran’s service records contain no in-service notation of the disease. 38 C.F.R. §§ 3.303(b), 3.309(a). The Veteran’s active duty service treatment records (STRs) contain multiple complaints of cold symptoms but do not reflect any complaints, findings, treatment, or diagnosis of a respiratory disease or injury. In the December 1965 Report of Medical History, the Veteran indicates that he has not experienced and was not experiencing shortness of breath, pain or pressure in chest, or chronic cough, and the December 1965 separation examination noted a normal evaluation of the lungs and chest. Additionally, the Veteran has made no assertion that his symptoms were continuous since service; nor does the record reflect any continuity of symptomatology since service. Finally, the evidence of record does not reflect manifestations of sarcoidosis within one year of the Veteran’s separation from service; the earliest notation of sarcoidosis is found in private records provided by the Veteran in May 2015 which reflect a sarcoidosis diagnosis in 1975. 38 C.F.R. § 3.307(a)(3). Thus, the evidence demonstrates that the Veteran’s sarcoidosis was not shown to be a chronic disease in service, exhibited no continuity of symptomatology, and did not manifest within a year of service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Although service connection under these presumptions is not established, since they do not preclude a finding for direct service connection, further analysis is appropriate. Combee at 1043-44. There is no competent scientific or medical evidence of record to support the Veteran’s contention that sarcoidosis resulted from exposure to an herbicide agent during active service. Although the Veteran does not assert that his sarcoidosis is otherwise related to his service or a service-connected disability, the Board notes that the evidence of record does not demonstrate a causal link between his disability and his service; nor does it demonstrate that his sarcoidosis was caused by or aggravated by a service-connected disability. Moreover, the Veteran is a layperson and does not profess to have the medical expertise required to determine the etiology of his sarcoidosis. Jandreau at 1377. Therefore, neither direct service connection nor secondary service connection is warranted. 38 C.F.R. §§ 3.303, 3.310. 2. Entitlement to service connection for rheumatoid arthritis, to include as due to diabetes mellitus or diabetic nephropathy, is denied. The Veteran makes the claim for service connection for rheumatoid arthritis on two bases: service connection linked to in-service exposure to Agent Orange, and as secondary to service-connected diabetes mellitus or diabetic nephropathy. Service connection is not warranted under any of the bases afforded specifically to certain chronic diseases. Arthritis is a chronic disease contemplated under the regulation; however, the Veteran’s service records contain no showing of the chronic disease in service. 38 C.F.R. §§ 3.303(b), 3.309(a). While the Veteran’s active duty STRs contain two July 1964 complaints of right shoulder pain when lifting or throwing that the Veteran estimated had started in 1961, the medical treatment provider noted there was no trauma and no apparent tenderness or sprain and made no diagnosis. In the December 1963 entry examination, the examiner noted that the Veteran had occasional shoulder pain. The Veteran also indicated having a “painful or ‘trick’ shoulder or elbow” in both the 1963 and 1965 reports of medical history. The December 1965 separation examination noted a normal upper extremity evaluation. These complaints of shoulder pain were insufficient to identify the disease entity or establish chronicity. Additionally, the Veteran has made no assertion that his symptoms were continuous since service; nor does the record reflect any continuity of symptomatology since service. Finally, the Veteran’s medical records reflect that the Veteran reported a history of rheumatoid arthritis since 1999, outside of the one-year presumptive period. 38 C.F.R. § 3.307(a)(3). Thus, the evidence demonstrates that the Veteran’s rheumatoid arthritis was not shown to be a chronic disease in service, exhibited no continuity of symptomatology, and did not manifest within a year of service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). With respect to entitlement based on a theory of direct service connection, there is no competent scientific or medical evidence of record to support the Veteran’s contention that rheumatoid arthritis resulted from exposure to an herbicide agent during active service. Although the Veteran does not assert that his sarcoidosis is otherwise related to his service, the Board notes that the evidence of record does not demonstrate a causal link between his disability and his service. As the Veteran is a layperson and does not profess to have the medical expertise necessary to determine the etiology of his disability, a finding of direct service connection is not warranted. Jandreau at 1377; 38 C.F.R. § 3.303. Finally, the Veteran contends that his rheumatoid arthritis is due to his service-connected diabetes mellitus with nephropathy because diabetes has compromised his immune system, resulting in the development of rheumatoid arthritis. However, the preponderance of the evidence is against a finding that secondary service connection for the Veteran’s rheumatoid arthritis is warranted. Competent medical evidence of record does not demonstrate that the Veteran’s rheumatoid arthritis was caused or aggravated beyond its natural progress by service-connected diabetes mellitus or diabetic nephropathy. Again, the Veteran does not profess to have the medical education, training, or experience required to make a competent medical opinion as to the etiology of his disability. Jandreau at 1377; 38 C.F.R. § 3.159(a)(1). Therefore, entitlement to service connection for rheumatoid arthritis is denied. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to diabetes mellitus, is remanded. The Veteran makes a claim for service connection for hypertension as secondary to service-connected diabetes mellitus. The Veteran states that he was diagnosed with hypertension after his reported 1994 diabetes mellitus diagnosis and before the 2012 diabetic nephropathy diagnosis and asserts that this is the normal progression of the disease. A remand is warranted to determine whether the Veteran’s hypertension was caused or aggravated by service-connected diabetes mellitus. While the records show a diagnosis of hypertension, the Veteran has not been provided with a VA examination regarding his hypertension. The May 2012 Diabetes Mellitus Disability Benefits Questionnaire form specifically lists as an option “Hypertension (in the presence of diabetic renal disease)” as a condition that can be at least as likely as not due to diabetes mellitus and the Veteran’s record reflects a May 2012 diagnosis for diabetic nephropathy. Because the record thus indicates that, with the presence of Veteran’s renal disease, hypertension may be associated with diabetes mellitus but is not conclusive as to its etiology, a VA examination is warranted. Id. Finally, a remand is warranted to determine whether there is direct service connection for hypertension based on presumed exposure to an herbicide agent. The Board notes that the National Academy of Sciences Institute of Medicine’s Veterans and Agent Orange: Update 2008 concluded that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. As competent medical evidence to decide the claim is insufficient, a VA medical opinion as to whether the Veteran’s hypertension is as likely as not related to herbicide exposure during service is required. Id. The matters are REMANDED for the following action: 1. The AOJ should secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his disabilities on appeal. If the Veteran has received private treatment, the AOJ should ask the Veteran to provide the releases necessary for VA to secure the records of such treatment. 2. After the record is determined to be complete, the AOJ should schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The Veteran’s claims-file must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension was caused by service-connected diabetes mellitus? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension was aggravated by service-connected diabetes mellitus? c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is related to exposure to an herbicide agent? d) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is otherwise related to service? In addressing these questions, the examiner is requested to consider the following: • A November 2015 treatment record notes that the Veteran reports he was diagnosed with diabetes mellitus in 1994. • There are notes of hypertension in the record as early as 2002. • A May 2012 medical record shows that the Veteran was diagnosed with diabetic nephropathy in 2012. • The National Academy of Sciences (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2008 concluded that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension; “a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting 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 M. Vashaw, Associate Counsel