Citation Nr: 21002817 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 18-13 217 DATE: January 15, 2021 REMANDED Entitlement to service connection for a thyroid problem, to include as secondary to service-connected diabetes mellitus, type II (DM), is remanded. Entitlement to service connection for a lung condition, to include as secondary to service-connected DM, is remanded. Entitlement to service connection for hypertension (HTN) (claimed as high blood pressure), to include as secondary to service-connected DM, is remanded. Entitlement to service connection for arthritis, to include rheumatoid arthritis (RA), osteoarthritis (OA), degenerative joint disease (DJD), and degenerative disc disease (DDD), is remanded. Entitlement to service connection for a liver condition, to include cirrhosis of the liver and fatty liver, to include as secondary to service-connected DM, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to March 1971. These matters return to the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO). These claims, along with other issues, were previously before the Board prompting a September 2019 decision wherein, in pertinent part, the Board denied service connection for each of these claims. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Affairs (CAVC or “the Court”). In September 2020, the Court granted a September 2020 Joint Motion for Partial Remand (JMPR) vacating these parts of the Board’s decision and remanding just these claims for further development. Thus, these matters have returned to the Board for further consideration consistent with the September 2020 JMPR. Other claims decided within the September 2019 decision were dismissed. As an aside, the Board, in the September 2019 decision, also remanded four other issues, to include entitlement to service connection for erectile dysfunction, bilateral lower extremities disorders, bilateral upper extremities disorders, and entitlement to a total disability based on individual unemployability (TDIU). All four issues have been granted in full in December 2016 and October 2019 rating decisions. Thus, the issues are no longer before the Board here. 1. Entitlement to service connection for a thyroid problem, to include as secondary to service-connected DM, is remanded. The Board’s September 2019 denial of service connection for a thyroid condition was largely reliant on a March 2017 VA examination and medical opinion. As observed in the September 2020 JMPR, while the March 2017 VA examiner opined that it was unlikely that the Veteran’s diabetes caused his thyroid condition, the opinion did not address aggravation. Accordingly, remand is necessary to obtain an opinion addressing aggravation specifically. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding a VA examination does not adequately address aggravation unless it rules out the possibility of aggravation). Additionally, the Board notes the March 2017 VA examiner indicated that the Veteran did not have hypothyroidism. Upon review, however, the Veteran’s treatment records include a March 2016 reference to hypothyroidism and a notation of possible hypothyroidism in 2014. The examiner should be further asked to resolve this ambiguity and clarify the nature of any and all of the Veteran’s thyroid conditions. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding an opinion based upon an “inaccurate factual premise has no probative value”). 2. Entitlement to service connection for a lung condition, to include as secondary to service-connected DM, is remanded. The Board previously denied the Veteran’s service connection claim for a lung condition based, in-part, on the March 2017 VA examiner’s opinion that the Veteran had not been diagnosed with a respiratory condition. As referenced in the September 2020 JMPR, shortly after the examination, however, in late March 2017, the Veteran’s treatment records show a note indicative of “moderate obstructive lung disease.” Although the Board can weigh one piece of medical evidence more favorably than the other, in light of the close in time records that are in contradiction to each other, a new VA examination is warranted to resolve the ambiguity. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). 3. Entitlement to service connection for HTN (claimed as high blood pressure), to include as secondary to service-connected DM, is remanded. The Board denied service connection for hypertension in September 2019 largely based on a March 2017 VA examination. The examiner, at that time, found hypertension was not likely secondary to service-connected diabetes. As observed in the September 2020 JMPR, the March 2017 VA examiner was silent with regard to whether hypertension could be directly associated to the Veteran’s military service. The Veteran was afforded a VA examination in March 2017 to determine the nature and etiology of his HTN and its relation, if any, to service. Upon review, the Board notes the March 2017 VA examiner indicated that the Veteran was diagnosed with HTN in 1971, the same year in which the Veteran separated from active-duty service. An opinion has not been obtained, however, regarding whether the Veteran’s HTN was caused by or incurred during service, to include as a result of exposure to herbicide agents or with chronicity of symptomatology since service. The Board also notes reference within the Veteran’s service treatment records (STRs) of elevated blood pressure readings including a reading of 145/80 in 1989 that has not been addressed by a VA examiner. As such, remand is necessary for a new VA examination. See Barr v. Nicholson, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). 4. Entitlement to service connection for arthritis, to include RA, OA, DJD, and DDD, is remanded. With regard to the Veteran’s rheumatoid arthritis (RA) claim, the Board previously denied the claim based on the evidence of record, finding no evidence of in-service incurrence or competent medical evidence suggesting a nexus. While it is true the Veteran was never specifically treated for RA in service or for decades thereafter, as the September 2020 JMPR points out, there is evidence that the Veteran was in a motor vehicle accident during his military service with referenced lumbar strain, and a separate cervical spine and shoulder injury while playing basketball during service. It is worth noting that RA is an autoimmune disease and, therefore, the presence of individual joint traumas in and of itself would not trigger the Board’s duty to obtain a VA examination. If the Board treats the Veteran’s RA claim liberally and extends to any form of “joint arthritis,” then the presence of these traumas is more relevant. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (recognizing that the Secretary “has no duty to read the mind of the claimant” but should “construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim). That is, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes affording the Veteran a medical examination or opinion when it is necessary to decide a claim. Id. Such development is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran’s treatment records reference diagnosis of OA, cervical spine DDD, DJD, and consultations related to RA. See October 2006; August 2015; May 2017; and March 2019 VA treatment records. The Veteran also reported treatment with a rheumatologist for multiple years. See May 2017 VA treatment records. Again, his STRs include reference to a lumbosacral strain following a motor vehicle accident in 1969 and reports of falls during basketball with shoulder and neck injuries. See November 1968 and December 1969 STRs. Treatment records reflect complaints of neck and joint pain following separation. The evidence of record, however, is insufficient to determine the nature and etiology of the Veteran’s arthritis and whether it is related to service, including his contended motor vehicle accident and basketball injuries. Thus, under McLendon, the Veteran shall be afforded a VA examination for his service connection claim for arthritis, to include OA, RA, DJD, and DDD. 5. Entitlement to service connection for a liver condition, to include cirrhosis of the liver and fatty liver, to include as secondary to service-connected DM, is remanded. As noted in the September 2020 JMPR, in light of the Veteran’s STRs referenced vomiting and other stomach and intestinal trouble, further consideration is warranted of whether these records trigger VA’s duty to afford the Veteran a VA examination. For reasons outlined below, the Board concludes it does. The Veteran’s treatment records reference a history of fatty liver. See March 2015 VA treatment records. During service, the Veteran reported, on more than one occasion, an inability to keep food down, abdominal cramping, nausea, diarrhea, and vomiting with gastritis referenced during a sick appointment. See July 1968 and June 1970 STRs. The Veteran’s separation examination references reported stomach, liver, or intestinal trouble. See December 1970 separation examination. According to UpToDate, fatty liver, while most often asymptomatic, can present with abdominal discomfort. See UpToDate “Epidemiology, clinical features, and diagnosis of nonalcoholic fatty liver disease in adults,” https://www.uptodate.com/contents/epidemiology-clinical-features-and-diagnosis-of-nonalcoholic-fatty-liver-disease-in-adults (Last accessed 1/21/2021). The evidence of record, however, is insufficient to determine the nature and etiology of the Veteran’s fatty liver condition and whether it is related to service, including his in-service reports of abdominal cramping and stomach, liver, or intestinal problems. Further, there is an indication that the Veteran’s fatty liver may be associated with his reports of stomach, liver, or intestinal trouble because it involves reference to the same organ. Thus, under McLendon, the Veteran shall be afforded a VA examination for his service connection claim for a liver condition, to include cirrhosis of the liver and fatty liver. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and then submit, or authorize VA to obtain, all non-VA treatment records related to his arthritis condition, to include treatment records from a rheumatologist as referenced in May 2017. 2. After the above development has been completed, schedule the Veteran for a VA examination before an appropriate examiner, to determine the nature and etiology of any thyroid condition. The claims file should be made available for review, which should be noted in the requested report. The examiner must opine whether the Veteran has a thyroid disability, to include hypothyroidism. If the Veteran has a thyroid disability, the examiner must also opine whether it is at least as likely as not (50 percent or greater probability) related to service, to include as a result of herbicide agent exposure. In so rendering the opinion, the clinician is reminded that the fact that a thyroid condition may not be in the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran’s specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. The examiner must also opine whether the Veteran’s thyroid disability was at least as likely as not (50 percent or greater probability) caused or aggravated by his service-connected diabetes mellitus, type II. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 3. Schedule the Veteran for a VA examination before an appropriate examiner, to determine the nature and etiology of any lung condition. The claims file should be made available for review, which should be noted in the requested report. The examiner must opine whether the Veteran has a lung condition. If the Veteran has a lung condition, the examiner must also opine whether it is at least as likely as not (50 percent or greater probability) related to service, to include as a result of herbicide agent exposure. The examiner is specifically directed to address the Veteran’s March 2017 treatment records referencing moderate obstructive lung disease. In so rendering the opinion, the clinician is reminded that the fact that a lung condition may not be in the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran’s specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. The examiner must also opine whether the Veteran’s lung condition is at least as likely as not (50 percent or greater probability) caused or aggravated by his service-connected diabetes mellitus, type II. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 4. Schedule the Veteran for a VA examination before an appropriate examiner, to determine the nature and etiology of his hypertension. The claims file should be made available for review, which should be noted in the requested report. The examiner must opine whether the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) related to service, to include as a result of herbicide agent exposure. In so rendering the opinion, the clinician is reminded that the fact that hypertension is not included in the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran’s specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. The examiner is specifically directed to address the in-service blood pressure reading of 145/80 in 1989 as well as the Veteran’s statements and March 2017 VA examiner’s notation that hypertension was diagnosed in the 1970s. The examiner shall also consider continuity of symptomatology since service. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any arthritis condition, to include rheumatoid arthritis, osteoarthritis, degenerative joint disease, and cervical spine degenerative disc disease. The claims file should be made available to the examiner for review, which should be noted in the requested report. The examiner must opine whether any diagnosed arthritis condition is at least as likely as not (50 percent or greater probability) related to service, to include the 1969 motor vehicle accident or basketball related injuries during service. The examiner is specifically directed to address the Veteran’s service treatment records and statements regarding an in-service motor vehicle accident in 1969 and injuries to the neck and shoulders from falls while playing basketball in-service. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any liver condition, to include cirrhosis and fatty liver. The claims file should be made available to the examiner for review, which should be noted in the requested report. The examiner must opine whether any diagnosed liver condition is at least as likely as not (50 percent or greater probability) related to service, to include the Veteran’s service treatment records referencing reports of stomach, liver, and intestine troubles, and complaints of abdominal pain. The examiner must also opine whether the Veteran’s liver condition is at least as likely as not (50 percent or greater probability) caused or aggravated by his service-connected diabetes mellitus, type II. The examiner is specifically directed to address the Veteran’s service treatment records regarding stomach, liver, or intestinal trouble and complaints of abdominal cramping, nausea, diarrhea, and vomiting. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 7. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.