Citation Nr: 18148309 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-43 725 DATE: November 7, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for a left pulmonary nodule is denied. Entitlement to service connection for erectile dysfunction (ED) is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a kidney condition, to include chronic kidney failure or kidney stones, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s COPD is etiologically related to his time in active service. 2. The preponderance of the evidence is against finding that the Veteran’s left pulmonary nodule is etiologically related to his time in active service. 3. The Veteran’s ED is proximately due to his service-connected DM. CONCLUSIONS OF LAW 1. The criteria to establish service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria to establish service connection for left pulmonary nodule have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria to establish service connection for ED have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to May 1969. The Veteran appeals a February 2016 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for hypertension, COPD, a left pulmonary nodule, and chronic kidney failure/nephrolithiasis. He also appeals a March 2016 rating decision denying service connection for ED. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, a Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6) (2017). In order to benefit from the presumption of service connection for diseases associated with herbicide agent exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309(e). However, diseases not enumerated in said regulation do not preclude service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). 1. COPD The Veteran contends that his current COPD relates to herbicide agent exposure. See July 2016 notice of disagreement (NOD). He does not contend, and the evidence does not show, that his COPD began in service; at separation, the Veteran self-reported no chronic or frequent colds, asthma, shortness of breath, pain or pressure in chest, or chronic cough. See May 1969 separation report of medical history. Nevertheless, the first and second Shedden elements are met. The Veteran has severe COPD. See April 2015 PFT interpretation record. Additionally, VA concedes that the Veteran was exposed to herbicide agents in the Republic of Vietnam. See DD Form 214. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s COPD and herbicide agent exposure. The Board notes that COPD is not an enumerated disease subject to presumptive service connection under 38 C.F.R. § 3.309(e). Hence, under a direct service connection theory, the Veteran would need to show a link between herbicide agent exposure and his current COPD. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s COPD is attributable to herbicide agent exposure or service cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s COPD is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether his COPD was attributable to service. As the Veteran’s only evidence suggesting a nexus between an in-service event and his current disability is lay evidence that he is not competent to offer, a VA examination is not needed. See Waters v. Shinseki, 601 F.3d 1274, 1277-88 (Fed. Cir. 2010). In that case, the Federal Circuit held that the Board’s use of “competent medical evidence” in discussing whether there is an association with service is harmless error when the record contains no evidence that the Veteran’s condition was related to service other than his own statements suggesting a link. Id. Thus, the Board denies the Veteran’s claim of entitlement to service connection for COPD because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Left Pulmonary Nodule The Veteran contends that his current left pulmonary nodule relates to herbicide agent exposure. See July 2016 notice of disagreement (NOD). He does not contend, and the evidence does not show, that his left pulmonary nodule began in service; at separation, the Veteran self-reported no chronic or frequent colds, asthma, shortness of breath, pain or pressure in chest, or chronic cough. See May 1969 separation report of medical history. Nevertheless, the first and second Shedden elements are met. The Veteran has an upper lobe nodule in his left lung. See October 2016 Dr. D.R. medical treatment record. Additionally, VA concedes that the Veteran was exposed to herbicide agents in the Republic of Vietnam. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s left pulmonary nodule and herbicide agent exposure. The Board notes that medical professionals have not established that the Veteran’s nodule is cancerous. His private physicians have monitored the nodule through CT scans every year, but have not indicated that it is malignant. As a result, the Veteran’s left pulmonary nodule is not an enumerated disease subject to presumptive service connection under 38 C.F.R. § 3.309(e). Hence, under a direct service connection theory, the Veteran would need to show a link between herbicide agent exposure and his current nodule. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s nodule is attributable to herbicide agent exposure or service cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s pulmonary nodule is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether his nodule was attributable to service. As the Veteran’s only evidence suggesting a nexus between an in-service event and his current disability is lay evidence that he is not competent to offer, a VA examination is not needed. See Waters v. Shinseki, 601 F.3d 1274, 1277-88 (Fed. Cir. 2010). In that case, the Federal Circuit held that the Board’s use of “competent medical evidence” in discussing whether there is an association with service is harmless error when the record contains no evidence that the Veteran’s condition was related to service other than his own statements suggesting a link. Id. Thus, the Board denies the Veteran’s claim of entitlement to service connection for left pulmonary nodule because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. ED The first and second Wallin elements are met and not in dispute. The Veteran has ED. See May 2016 VA examination report. Further, the Veteran is service-connected for diabetes mellitus, type II (DM). As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s ED and his service-connected disabilities. A VA clinician, though acknowledging that the etiology of the Veteran’s ED is unclear, stated that DM was a “contributing factor” to the Veteran’s ED. See May 2016 VA examination report. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds that in this particular case there is expert evidence of record establishing a link between the Veteran’s ED and his service-connected DM. Accordingly, the Board grants service connection for ED. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Hypertension The Veteran has hypertension. As the Veteran served in the Republic of Vietnam, exposure to an herbicide agent is presumed. See 38 C.F.R. § 3.307(a) (2017). Hypertension is not one of diseases listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide agent exposure applies. The National Academy of Sciences (NAS) has concluded, however, that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 2010 (2011) at 694; 77 Fed. Reg. 47,924-01 (Aug. 10, 2012). Given the 2010 NAS update, there is an indication that the Veteran’s diagnosed hypertension may be associated with his herbicide exposure, thus triggering VA’s duty to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Therefore, a VA examination is necessary to determine if the Veteran’s hypertension is related or attributable to his time on active duty. 2. Chronic Kidney Disease and Stones The Veteran has a history of kidney stones and elevated creatinine indicative of chronic kidney disease, stage 3. See December 2015 Dr. D.R. disability benefits questionnaire (DBQ). Dr. D.R. also stated that the Veteran’s creatinine levels have been elevated since 2009. Id. While his creatinine levels were normal upon VA examination in May 2016, his levels rose again in December 2016. See December 2016 VA treatment record. Further, as recent as March 2018, his creatinine levels are outside the reference range. See March 2018 comprehensive metabolic profile. Nevertheless, the May 2016 VA clinician determined that “[b]ased on most recent results, his renal function has returned to normal. The [V]eteran has had renal dysfunction in the past; however, recent labs are within normal limits and not indicative of a current complication from Diabetes Mellitus at his time.” See May 2016 VA clinician medical opinion. As stated above, the factual predicate upon which the clinician relies to disassociate DM from kidney failure is no longer accurate. An opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Further, the VA clinician did not specifically address why DM did not cause or aggravate the Veteran’s kidney condition prior to May 2016. Hence, the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thus, the Board must remand the claim for a secondary service connection opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his hypertension and kidney condition. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the VA clinician is asked to respond to the following inquiry: Is it at least as as likely as not that the Veteran’s hypertension was incurred in, or is otherwise related, to his time on active service, to include his herbicide agent exposure? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the chronic kidney disease and stones. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran if deemed necessary by the clinician, the VA clinician should identify all kidney disabilities present. Then, the VA clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s kidney condition was (a.) caused or (b.) aggravated by his service-connected disabilities, to include DM? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel