Citation Nr: 18153541 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-50 551 DATE: November 28, 2018 REMANDED Entitlement to service connection for a kidney disorder, to include chronic kidney disease (CKD), as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to November 1970. Entitlement to service connection for a kidney disorder, to include chronic kidney disease (CKD), as secondary to service-connected diabetes mellitus, type II, is remanded. The Veteran asserts that service connection for a kidney disorder, to include chronic kidney disease, is warranted as secondary to his service-connected diabetes, mellitus, type II. See 1) August 2018 statement from representative, 2) October 2016 substantive appeal (VA Form 9); 3) April 2014 Notice of Disagreement (NOD); and 4) May 2013 Application for Disability Compensation. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2017). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. The Board notes that secondary service connection on the basis of aggravation may be granted only when there is an increase in severity of the nonservice-connected disability beyond a medically established baseline due to the service-connected disability. The regulation specifically states that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. In August 2013, a VA medical opinion was provided on the Veteran’s claimed kidney disorder. The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s kidney failure is due to or aggravated by the Veteran’s diabetes mellitus. The examiner stated that the Veteran’s medical record show a diagnosis of diabetes and chronic renal insufficiency in 2011 and that the Veteran has a history of longstanding hypertension, thus, chronic renal insufficiency is due to hypertension. In an April 2014 NOD, the Veteran stated that he “double checked” with his doctor, Dr. V.M., who stated that his kidney failure was not caused by hypertension and that it was “probably a result of [his] diabetes.” In his October 2016 substantive appeal, the Veteran stated that he checked with Dr. V.M., who confirmed that the Veteran did not have hypertension and that the kidney failure was secondary to his diabetes. The Veteran also proffered a note dated August 28, 2014, from Dr. VM., that states, “This is to certify that the above patient (the Veteran) has stage III CKD secondary to his insulin requiring diabetes mellitus.” When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In review of the VA opinion provided in August 2013, the Board finds the opinion to be inadequate for adjudication purposes. While the examiner discussed secondary causation, she did not provide sufficient rationale for her opinion as to aggravation of the Veteran’s kidney disorder by the service-connected diabetes mellitus, type II. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Veteran has also submitted additional medical evidence from his private medical provider in support of his claim. An opinion, with adequate rationale, on whether the Veteran’s kidney disorder was aggravated by his service-connected diabetes mellitus, type II, is necessary; therefore, a remand is in order. The matter is REMANDED for the following action: 1. Return the Veteran’s claims file to the August 2013 VA examiner who performed the examination and provided the opinion for the claimed kidney disorder or to a qualified medical professional if the examiner is unavailable, to provide an addendum opinion. If the examiner finds that an examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The VA examiner’s attention is drawn to the following: • In September 2018 correspondence, the Veteran’s representative stated that the Veteran’s medical records from Florida Hospital, Heartland Medical Center, reflect a “longstanding diagnosis of diabetes mellitus, type II, with neuropathy and chronic kidney disease.” The representative asserts that the Veteran is entitled to service connection for his chronic kidney disease as secondary to his service-connected diabetes mellitus, type II. This is what the Veteran believes is the cause of his current kidney disorder. See VBMS entry with document type, “Third Party Correspondence,” receipt date 09/07/2018. • Medical treatment records from Florida Hospital, Heartland Medical Center, dated January 14, 2015; May 7, 2015; January 25, 2016; and May 5, 2016 referenced by the Veteran’s representative in September 2018 correspondence are of record. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 09/07/2018. • In his October 2016 substantive appeal, the Veteran stated that he checked with Dr. V. M., who confirmed that he did not have hypertension and that the kidney failure was secondary to his diabetes. See VBMS entry with document type, “Form 9,” receipt date 10/07/2016. • A note submitted with the Veteran’s October 2016 substantive appeal, dated August 28, 2014, from Dr. V. M., states, “This is to certify that the above patient (the Veteran) has stage III CKD secondary to his insulin requiring diabetes mellitus.” See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 10/07/2016. • In an April 2014 Notice of Disagreement (NOD), the Veteran stated that he “double checked” with his doctor, Dr. V. M., who stated that his kidney failure was not caused by hypertension and that it was “probably a result of [his] diabetes.”. See VBMS entry with document type, “NOD,” receipt date 04/11/2014. • Of record is the August 2013 VA examination report and opinion for the claimed kidney. See VBMS entry with document type entitled “CAPRI,” received 08/01/2013, on pages 5-12. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions: a) Is the diagnosed kidney disorder, to include chronic kidney disease, at least as likely as not (50 percent or greater likelihood) caused by the service-connected diabetes mellitus, type II? b) If the answer to a) is negative, is the diagnosed kidney disorder, to include chronic kidney disease, at least as likely as not (50 percent or greater likelihood) aggravated (permanently worsened beyond the natural progression of the disorder) by the service-connected diabetes mellitus, type II? c) Please address 1) the medical treatment records from Florida Hospital, Heartland Medical Center, specifically, records dated January 14, 2015; May 7, 2015; January 25, 2016; and May 5, 2016 (location of these records is described above); 2) the note submitted with the Veteran’s October 2016 substantive appeal, dated August 28, 2014, from Dr. V. M.; and 3) the Veteran’s contention that he did/does not have hypertension. d) If the examiner finds that the service-connected diabetes mellitus, type II, permanently aggravates the Veteran’s kidney disorder, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the kidney disorder prior to aggravation. If the examiner is unable to establish a baseline for the kidney disorder prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel