Citation Nr: 18150522 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-39 533 DATE: November 15, 2018 ORDER Entitlement to service connection for a kidney disability, to include as secondary to service-connected diabetes, is denied. Entitlement to service connection for diverticulitis, to include as secondary to service-connected diabetes, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes and sleep apnea syndrome, is remanded. Entitlement to an effective date earlier than September 5, 2015, for the award of entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. A preponderance of the evidence of record does not support a finding that the Veteran’s currently diagnosed kidney disability was caused by any disease or injury incurred in service, or secondary to his service-connected disabilities. 2. A preponderance of the evidence of record does not support a finding that the Veteran’s currently diagnosed diverticulitis was caused by any disease or injury incurred in service, or secondary to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a kidney disability, to include as secondary to service-connected diabetes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for diverticulitis, to include as secondary to service-connected diabetes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1974 to September 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction has since been transferred to the RO in Newark, New Jersey. These matters were previously before the Board in December 2011, May 2015, and January 2018. The January 2018 Board decision remanded the issues of entitlement to service connection for hypertension, a kidney disability, and diverticulitis due to the inadequacy and the conclusory nature of the most recent VA examinations of record. The earlier effective date claim for the service-connected back disability was remanded to correct a procedural error. Subsequently, the Veteran was provided VA examinations for his disabilities in August 2018. As discussed below, the Board finds the examinations for diverticulitis and a kidney disability to be adequate. Accordingly, the Board’s January 2018 remand decision, with regards to the issues of service connection for a kidney disability and diverticulitis, has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial, and not strict, compliance with the terms of the remand order is required). However, a remand is required for the issue of entitlement to service connection for hypertension, to include an opinion regarding whether the Veteran’s currently diagnosed hypertension is due to his recently service-connected sleep apnea syndrome. Further, it does not appear that the RO corrected the procedural error identified in the January 2018 Board decision regarding the Veteran’s earlier effective date claim. Thus, this issue is once again remanded to the RO for further action. The Board further notes that medical documents were associated with the claims file after the issuance of the May 2018 supplemental statement of the case. Generally, evidence submitted after the statement of the case must be reviewed by the RO, unless this RO review is waived by the Veteran. However, as this evidence was either submitted by the Veteran, or related to issues not currently on appeal, and therefore not relevant, the Board finds the absence of a waiver is not prejudicial to the Veteran. See 38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1304(c). Finally, the Board notes that in June 2017, the Veteran and his wife appeared and testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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(d). Additionally, entitlement to service connection may be established on a secondary basis to an already service-connected disability. To substantiate a claim for secondary service connection, evidence is needed to establish that the nonservice-connected current disability is either proximately due to, or the result of, a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran maintains that he is entitled to service connection for a kidney disability and diverticulitis. He asserts that these disabilities were caused by an in-service motor vehicle accident, or by his service-connected disabilities, to include diabetes. By way of background, the Board notes that in August 1975, the Veteran was hospitalized following a severe motor vehicle accident. He sustained multiple traumatic abdominal injuries as a result of this accident, which included multiple contusions to the pancreas, and the removal of his spleen. Because of these injuries, the Veteran was ultimately service-connected for diabetes mellitus, type II, post-operative splenectomy, and fatty food intolerance secondary to pancreatic dysfunction. Kidney Disability The Veteran was most recently provided a VA examination for his kidney disability in April 2018. The Board notes that he was previously provided a VA examination for this disability in August 2015, but the Board in its January 2018 remand found the negative nexus opinion provided to not contain a sufficient rationale, and was therefore, remanded for a new opinion. In the April 2018 opinion, the Veteran was provided a diagnosis of nephrolithiasis (kidney stones), with an onset in 2004. He had a history of recurrent kidney stones since 2004, and had several acute renal colic requiring treatment. He denied intervention since his last examination. He reported passing a kidney stone spontaneously the last year. However, he did not have any current symptoms related to his kidney stones. His kidneys were noted to be adequate, and he was not receiving treatment for any current disability. Upon review of the Veteran’s claims file, the VA examiner opined that it is less likely than not that the Veteran’s kidney stones were related to a disease or injury incurred in service. The examiner reasoned that there was no evidence that the Veteran was diagnosed with, or treated for, kidney stones in service. The examiner further opined that it was less likely than not that the Veteran’s kidney stones were caused or aggravated by any of the Veteran’s service-connected disabilities, to include post-operative splenectomy and fatty food intolerance secondary to pancreatic dysfunction and diabetes. The VA examiner reasoned that the Veteran’s service-connected disabilities are not known risk factors for developing kidney stones. Specifically, regarding the Veteran’s diabetes, the examiner noted that the Veteran was known to have kidney stones prior to being diagnosed with and treated for diabetes. The examiner noted that the Veteran’s diet and other risk factors such as obesity were likely major factors in his development of kidney stones. The Board notes that in a May 2018 letter, the Veteran questioned the adequacy of this VA examination, for the examination was short and the examiner did not look at medical documentation presented by the Veteran. Upon review of the examination report provided by the VA physician who conducted the April 2018 examination, the Board finds this examination and opinion to be adequate and highly probative as to the etiology of the claimed kidney stones. The examiner conducted a thorough review of the Veteran’s claims file, which included all the medical evidence the Veteran submitted to VA. Further, the examiner provided a detailed review of the Veteran’s medical history, including his in-service injuries, and provided sufficient rationales for all opinions provided. Accordingly, the Board finds this examination and opinion to be competent, credible, and affords it significant probative weight. Also of record is an October 2009 letter from the Veteran’s private physician. The Veteran’s private physician indicated she was closely monitoring the Veteran’s renal function due to diabetes. However, this opinion did not indicate whether the Veteran had any kidney disability that was caused or aggravated by the Veteran’s service-connected diabetes, or any other service-connected disability, and did not provide a rationale for any opinions provided. Finally of record are lay statements from the Veteran, as well as medical literature submitted by the Veteran. Specifically, the Veteran submitted general information on renal colic, indicating that it is pain commonly caused by kidney stones. However, there was no indication that the kidney stones the Veteran experienced were related to the injuries he sustained in service, or by any of his service-connected disabilities. Further, during the June 2017 Board hearing, the Veteran acknowledged that he did not have a diagnosis of renal deficiency, but rather only experienced kidney stones. In light of the foregoing, the Board finds that entitlement to service connection for a kidney disability is not warranted. The evidence does not suggest that the Veteran’s only diagnosed kidney disability—kidney stones—is either directly related to his in-service motor vehicle accident, or was caused or aggravated by any of his service-connected disabilities. The thorough opinion of the April 2018 VA physician did not find a connection between the Veteran’s kidney stones and his service-connected post-operative splenectomy, fatty food intolerance secondary to pancreatic dysfunction, or diabetes. Further this is opinion is provided more probative weight than the October 2009 letter from the Veteran’s private physician, as the letter did not provide a current diagnosis of a kidney disability or a rationale as to why the Veteran’s kidney stones were due to any of his service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for a kidney disability is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diverticulitis The Veteran was most recently provided a VA examination for intestinal disabilities in April 2018. The Board notes that he was previously provided a VA examination for this disability in August 2015, but the Board in its January 2018 remand found the negative nexus opinion provided to not contain a sufficient rationale, and the claim was therefore remanded for a new opinion. In the April 2018 VA examination, the Veteran was provided a diagnosis of diverticulitis. The examiner detailed the Veteran’s in-service blunt trauma to the abdomen with injury to his spleen, liver, and pancreas, and that the Veteran underwent a splenectomy and repair of the liver. He did not require any surgical intervention for the intestinal tract. After these in-service injuries, he reported abdominal pain and nausea after eating meals. He was noted to have diverticulosis a few years ago with episodes of diverticulitis. Colonoscopies were negative for any significant findings other than stable diverticulosis. The VA examiner opined that it is less likely than not that the Veteran’s diverticulosis or diverticulitis is related to any in-service disease or injury. The examiner reasoned that there was no evidence that the Veteran was diagnosed with diverticulitis in service. Although he was seen for adnominal pain post prandial in service, this is not a characteristic symptom of diverticulitis, for diverticular pain typically involves the left lower abdomen and is not associated with fatty food intolerance. Regarding whether the diverticulitis is due to the Veteran’s service-connected disabilities, the examiner opined that it is less likely than not that the Veteran’s diverticulitis is caused by the service-connected post-operative splenectomy and fatty food intolerance secondary to pancreatic dysfunction. The examiner cited to medical literature in support of his opinion indicating that these disabilities are not considered to be risk factors for diverticulitis and there is no evidence that diverticular disease is aggravated by either service-connected disability. Regarding the service-connected diabetes, the examiner opined that it is less likely than not that the diabetes caused or aggravated the Veteran’s diverticulitis. The examiner reasoned that the dominant medical theory is that a low-fiber diet is the main cause of diverticular disease, and that diabetes is not considered to be a risk factor for diverticulosis or diverticulitis. As discussed in the previous section, in a May 2018 letter, the Veteran contested the adequacy of the April 2018 VA examinations conducted in connection with his claims currently on appeal. However, for the reasons discussed above, the Board finds that the April 2018 VA examination to be detailed, thorough, and adequate. Thus, this examination and opinions are provided significant probative weight. Also of record are lay statements and medical literature submitted by the Veteran. During his June 2017 Board hearing, the Veteran maintained that his diverticulitis is due to his in-service motor vehicle accident and subsequent surgeries. He indicated that he always had digestive problems since his accident. The Board notes that the Veteran is currently service-connected for a fatty food intolerance secondary to pancreatic dysfunction. Further, the Veteran has submitted medical literature containing general information on diverticulosis and diverticulitis. The medical literature submitted by the Veteran confirms the rationale provided by the April 2018 VA examiner indicating that the dominant theory of the cause of diverticular disease in a low-fiber diet. In light of the foregoing, the Board finds that entitlement to service connection for diverticulitis is not warranted. The medical evidence of record, including that submitted by the Veteran, does not show a connection between the Veteran’s service-connected disabilities and his currently diagnosed diverticulitis. Although the Veteran is competent to describe his symptoms, opining as to the etiology of a digestive disease is complex and requires medical training or knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). Thus, the Board finds that the Veteran’s statements are outweighed by the competent medical evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for diverticulitis is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran also maintains that he is entitled to service connection for hypertension, to include as secondary to his service-connected disabilities, and to an earlier effective date for the award of entitlement to service connection for a back disability. As discussed below, the Board finds that a remand is warranted for both of these claims. Hypertension The Veteran maintains that he is entitled to service connection for hypertension, to include as secondary to his service-connected disabilities. The Veteran was most recently provided a VA examination for his hypertension in August 2018. The Board notes that the Veteran was previously provided a VA examination for this disability in August 2015, but the Board in its January 2018 remand found the negative nexus opinion provided by the VA examiner to be conclusory in nature, and remanded for a new opinion. The Board notes that after its January 2018 decision, the Veteran was service-connected for sleep apnea syndrome. The April 2018 VA examiner provided a diagnosis of hypertension, with an onset date of 2003. He provided a negative direct nexus opinion. Regarding a secondary opinion, the examiner opined that it was less likely than not that the Veteran’s hypertension was caused by his service-connected disabilities, to include post-operative splenectomy, fatty food intolerance secondary to pancreatic dysfunction, and diabetes. The examiner did not address the Veteran’s recently service-connected sleep apnea syndrome. The Veteran claims that there is a connection between his sleep apnea syndrome and hypertension. A September 2018 letter submitted by the Veteran from his treating private physician indicated the he treated the Veteran for severe obstructive sleep apnea, which has a known major association with hypertension. However, this letter provided a conclusory opinion and did not provide any rationale for the opinion provided. Thus, the Board finds that a remand is warranted to obtain an addendum opinion on whether the Veteran’s hypertension was caused or aggravated by his currently service-connected sleep apnea syndrome. Earlier Effective Date In the January 2018 Board decision, the issue of entitlement to an earlier effective date for a service-connected back disability was remanded for the issuance of a statement of the case. By way of background, the RO granted entitlement to service connection for the Veteran’s back disability in an October 2015 rating decision. He was provided a disability rating of 10 percent, with an effective date of September 5, 2015. The Veteran submitted a letter in November 2015 indicating a disagreement with the October 2015 disposition of his back disability claim. The Board found in its January 2018 decision that the Veteran was not provided an appropriate notice of disagreement form, and as such, the November 2015 statement constituted a timely notice of disagreement. See 38 C.F.R. § 20.201(b). Accordingly, the Board remanded the earlier effective date claim to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A review of the record reflects that a statement of the case for the earlier effective date claim was not issued subsequent to the Board’s January 2018 remand. Thus, the Board once again remands this claim for the issuance of a statement of the case. Accordingly, these matters are REMANDED for the following action: 1. Regarding the Veteran’s earlier effective date claim, the RO should provide the Veteran and his representative a statement of the case on the issue of entitlement to an effective date earlier than September 5, 2015, for the award of service connection for a back disability. The Veteran and his representative should be informed of the requirements to perfect an appeal with respect to this earlier effective date claim. 2. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records related to the Veteran’s claims. 3. Forward the Veteran’s electronic claims file to an appropriate examiner for a supplemental opinion regarding whether the Veteran’s hypertension was caused or aggravated by his service-connected sleep apnea syndrome. It is left to the examiner’s discretion whether to reexamine the Veteran. Following the review of the claims file, the examiner should identify any currently diagnosed hypertension and provide an opinion on the following: Whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed hypertension was caused AND/OR aggravated (increased in severity) by the Veteran’s service-connected sleep apnea syndrome. A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel