Citation Nr: 21004699 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-24 120 DATE: January 27, 2021 REMANDED Entitlement to service connection for membranous nephropathy is remanded. Entitlement to service connection for dermatophytosis is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to September 1971. The Veteran’s service included service in Korea in the vicinity of the demilitarized zone (DMZ). In July 2016, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues on appeal were most recently before the Board in July 2018, and the Board denied service connection for membranous nephropathy and dermatophytosis. The Veteran perfected an appeal to the U.S. Court of Appeals for Veterans Claims (the Court). In a June 2020 memorandum decision, the Court determined that January 2017 VA examinations for membranous nephropathy and dermatophytosis were inadequate, vacated the July 2018 Board decision, and remanded the issues to Board for further adjudication. 1. Entitlement to Service Connection for Membranous Nephropathy The Veteran was afforded a VA examination for membranous nephropathy in January 2017. In the June 2020 memorandum decision, the Court concluded that the January 2017 VA examination was inadequate for three reasons. First, the examiner incorrectly concluded that direct service connection was not warranted because membranous nephropathy was not enumerated in 38 C.F.R. § 3.309(e) as one of the disorders for which presumptive service connection is warranted. The Court rejected this reasoning in Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). Second, the examiner failed to properly explain the basis for rejecting medical literature regarding an association between diabetes mellitus and membranous nephropathy. Third, the examiner used the incorrect standard in the opinion provided for secondary service connection. The examiner concluded that Type II diabetes mellitus did not cause “permanent aggravation” of membranous nephropathy. The Court has held that the permanent worsening standard does not apply in claims of entitlement to service connection on a secondary basis. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Because the January 2017 VA examination is inadequate, the Veteran’s claim must be remanded to afford him a new VA examination for membranous nephropathy. 2. Entitlement to Service Connection for Dermatophytosis The Veteran was afforded a VA examination for dermatophytosis in January 2017. The examiner concluded that the Veteran did not have a current diagnosis of a chronic skin disorder. In doing so, the examiner applied the incorrect standard for purposes of determining whether a veteran has a current disorder for purposes of service connection. The Veteran may not have had any diagnosed skin disorder at the time of the January 2017 VA examination; however, the Veteran has indicated that his complaints of extreme itchiness were episodic. Citing McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court noted that the proper inquiry looks for a current disorder during the pendency of the claim and not just at the time of the examination. The Court further noted that the examination should be conducted during a time when the Veteran’s skin symptoms are active. In light of the foregoing, the Veteran’s claim must be remanded to afford the Veteran a new VA examination to determine the nature and etiology of any skin disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for membranous nephropathy. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is membranous nephropathy at least as likely as not related to service, including the Veteran’s exposure to herbicide agents during service near the Korea DMZ? The examiner is advised that a negative opinion cannot be based solely on the fact that the membranous nephropathy is not on the list of diseases that are presumptively associated with exposure to herbicide agents enumerated in 38 C.F.R. § 3.309. (b.) Is membranous nephropathy at least as likely as not related (i) proximately due to the Veteran’s service-connected Type II diabetes mellitus or (ii) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected Type II diabetes mellitus? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. In providing a rationale for the opinion reached, the examiner must address medical literature discussing an etiological association between Type II diabetes mellitus and membranous nephropathy. The examiner must provide a rationale to support the opinion proffered. 2. Schedule the Veteran for a VA examination for a skin disorder. The examiner must review the claims file. To the extent possible, the examination should be conducted at time when the skin disorder is active. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider those symptoms to constitute a “disability” for the purpose of providing the opinions requested below. The examiner is asked to provide a response to the following: (a.) Is any skin disorder at least as likely as not related to service, including the Veteran’s presumed exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the membranous nephropathy is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (b.) Is a skin disorder at least as likely as not related (i) proximately due to any service-connected disability, to include the Veteran’s service-connected Type II diabetes mellitus or (ii) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability, to include service-connected Type II diabetes mellitus. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide a rationale to support the opinions proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.