Citation Nr: 21063295 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-27 233 DATE: October 13, 2021 REMANDED Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for chronic kidney disease is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to August 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2019, the Board issued a decision denying service connection for type II diabetes mellitus and chronic kidney disease, and denying a petition to reopen entitlement to service connection for hypertension. The Veteran filed a timely appeal before the United States Court of Appeals for Veterans Claims (Court). In a February 2021 memorandum decision, the Court dismissed the Veteran's appeal regarding the petition to reopen entitlement to service connection for hypertension, thereby rendering the Board's August 2019 determination final as to that claim. The Court also vacated the Board's decision denying entitlement to service connection for type II diabetes mellitus and chronic kidney disease, and remanded these matters for further agency consideration, as discussed further below. While the Board regrets the additional delay in the adjudication of these claims, a remand is necessary for further development to ensure that there is a complete record upon which to decide the matters. In September 2021, after the appeal had returned to the Board from the Court, the Veteran's attorney submitted a private medical opinion by Dr. SRB linking the Veteran's type II diabetes mellitus and chronic kidney disease to claimed in-service exposure to herbicide agents at the Korean Demilitarized Zone (DMZ). Pursuant to 38 U.S.C. § 1116B, herbicide agent exposure is presumed for veterans who served on active duty in the Korean DMZ between September 1967 and August 31, 1971. The Veteran's available military personnel records reflect that he was stationed in Korea from March 1981 to March 1982. As this active service post-dates the presumptive period recognized in 38 U.S.C. § 1116B, it is not presumed that the Veteran was exposed to herbicide agents during such service. Nevertheless, the Veteran's claim may be considered if actual exposure to herbicide agents is probatively established in the record. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the private medical opinion, Dr. SRB stated that the Veteran was in the Korean DMZ after the time period subject to presumed herbicide agent exposure, but stated that herbicide agents still contributed to the Veteran's disease burden because Agent Orange is chemically bound to biological surfaces, such as soil, grass, and leaves; it has a half-life of nearly 7.5 years; and it continues to degrade over numerous years. Dr. SRB cited to no scientific literature to support this theory, nor did he cite to record evidence demonstrating that the Veteran's military occupational specialty (MOS) as a metal worker would have resulted in him performing excavation of allegedly contaminated soil or performing other duties with regular and routine exposure to soil, grass, and/or leaves in the Korean DMZ. In fact, contrary to Dr. SRB's suggestion, the record only confirms that the Veteran served in the Republic of Korea, without any reference to service along the DMZ. The Veteran has not provided any lay statements to VA or cited to any other evidence of record alleging that he served in the Korean DMZ. Nevertheless, Dr. SRB's statement raises this theory of entitlement, and the Board finds that the claims must be remanded for additional evidentiary development to determine whether the Veteran's unitHHC, 1st of the 9th Infantry Battalion, 2nd Infantry Divisionserved in the Korean DMZ between March 1981 and March 1982. The service personnel records currently in the electronic claims file appear to primarily pertain to the Veteran's service in the Louisiana National Guard from December 1982 to December 1984. The RO is requested to undertake additional efforts to locate all personnel records from the Veteran's period of active duty service. If service in the Korean DMZ is verified, the RO is requested to undertake additional efforts to determine whether the Veteran would have been exposed to herbicide agents coincident with such service as a result of his MOS. Dr. SRB's private medical opinion explains at length that the benzene found in herbicide agents is extremely toxic, yet he cited to no medical literature showing that herbicide agents cause chronic kidney disease, and he did not provide any supporting rationale for his conclusion that herbicide agents caused the Veteran's chronic kidney disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Upon remand, only if herbicide agent exposure is verified, should an addendum medical opinion be obtained to determine whether the Veteran's chronic kidney disease is etiologically related to such exposure. If herbicide agent exposure is verified, service connection for type II diabetes mellitus shall be granted, as this disability is on the list of diseases presumptively associated with herbicide agent exposure. See 38 C.F.R. § 3.309(e). VA treatment records from December 2015 indicate that the Veteran's type II diabetes mellitus was "beginning to affect [the Veteran's] kidneys." This statement was unsupported by an explanatory rationale thus depriving it of probative value in this appeal. See id. at 304. Only if herbicide agent exposure is verified upon remand and results in the award of service connection for type II diabetes mellitus, should a VA medical opinion be obtained as to whether the Veteran's chronic kidney disease is proximately due to, the result of, or aggravated by the Veteran's type II diabetes mellitus. See 38 C.F.R. § 3.310. When the Board denied service connection for type II diabetes mellitus in the August 2019 decision, it relied predominantly on an August 2014 VA medical opinion. The Veteran's service treatment records contain a July 1979 periodic examination which listed the relevant body systems as clinically normal and contained urinalysis results showing no sugar and trace albumin. There was a notation referencing other urinalysis results, but no other findings were included in the available service treatment records. The August 2014 VA examiner reviewed this July 1979 periodic examination report and stated: [T]he Veteran DID NOT have trace "microalbuminuria" at physical 7/79 but rather "trace albumin" (on a dip paper strip test only); this test strip technique is not reliable or precise. And even [if] true, mild proteinuria can be found occasionally in healthy young adults, no work-up or treatment is indicatedand [it] is of no clinical significance (hence no other tests were done on [the] Veteran). The VA examiner then cited additional record evidence showing that the Veteran's diabetes mellitus did not develop until approximately 2009nearly 27 years after the Veteran's separation from service. In the February 2021 memorandum decision, the Court explained that the Board should have returned the August 2014 VA examiner's report for clarification before relying on it to adjudicate the claim. The Court stated that the VA examiner did not adequately explain why the July 1979 urinalysis results did not show microalbuminuria or how she knew the July 1979 urinalysis test was conducted using a dip paper strip test. The Court ordered the Board to remand the claims to seek clarification regarding these aspects of the August 2014 VA examiner's medical opinion. Additionally, the Court raised the issue of whether the Veteran's service treatment records were complete, as the July 1979 periodic examination referenced additional urinalysis results in the "other tests" section, despite no other urinalysis findings in the currently available service treatment records. See also Appellant's brief before the Court alleging incomplete service treatment records. In the appellate brief filed before the Court, the Veteran's attorney alleged for the first time that the Veteran's chronic kidney disease may be related to the trace urine albumin noted in the July 1979 periodic examination. In light of the above, the claims are remanded for the RO to undertake additional efforts to locate the Veteran's complete service treatment records, to include any additional urinalysis test results, as referenced in the July 1979 periodic examination report. Thereafter, the RO is requested to obtain an addendum VA medical opinion addressing whether the Veteran's current type II diabetes mellitus and chronic kidney disease are related to the available July 1979 urinalysis results showing the presence of trace urine albumin. The VA examiner shall be requested to specifically address the inquiries raised by the Court. The Veteran has additionally alleged that his chronic kidney disease may be the result of in-service exposure to toxic heavy metals through the performance of his duties as a metal worker. In the May 2019 informal hearing presentation, the Veteran's previous representative cited internet articles suggesting that metal workers are at a high risk of exposure to heavy metals (such as lead, copper, and cadmium) which can impact kidney functioning. These articles are sufficient to raise the prospect that the Veteran's chronic kidney disease may be the result of heavy metal exposure during the Veteran's active duty service, where his MOS was metal worker. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). As such, a VA medical opinion should be obtained regarding this theory of entitlement. Lastly, the RO is requested to obtain any additional VA treatment records from June 2021 to the present. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 2. Undertake additional efforts to obtain the Veteran's complete service treatment records, to include the additional urinalysis results referenced in the July 1979 periodic examination report. 3. Undertake additional efforts to obtain the Veteran's complete service personnel records from his period of active duty service (August 1978 to August 1982). 4. If after further efforts, the RO is unable to locate any additional service treatment or personnel records, to include the additional urinalysis results referenced in the July 1979 periodic examination report, or if additional efforts to obtain the records would be futile, provide notice of this conclusion to the Veteran and his attorney in accordance with 38 C.F.R. § 3.159(e). 5. Undertake efforts to verify whether the Veteran's unit, HHC, 1st of the 9th Infantry Battalion, 2nd Infantry Division, served in the Korean DMZ between March 1981 to March 1982. 6. ONLY IF Korean DMZ service is confirmed, undertake appropriate efforts to verify the Veteran's contention that he may have been exposed to herbicide agents through contact with contaminated soil, grass, or leaves as a result of his MOS as a metal worker between March 1981 and March 1982. 7. DO NOT proceed with the following instructions until Directives 1 through 6 above have been completed, to the fullest extent possible. 8. THEN, obtain an addendum VA medical opinion addressing the etiology of the Veteran's type II diabetes mellitus. Following a complete review of the electronic claims file, including a copy of this REMAND, an appropriate VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current type II diabetes mellitus began in or is otherwise etiologically related to the Veteran's active duty service, to include as a result of trace urine albumin noted at the July 1979 periodic physical examination? In answering this question, the VA examiner is requested to review the August 2014 VA medical opinion and address the following issues raised by the Court: (i.) Do the July 1979 urinalysis results show microalbuminuria? Why or why not? If so, is this indicative of the onset of type II diabetes mellitus? (ii.) Were the urinalysis results from the July1979 periodic examinationwhich show trace albumin in the urineobtained using a dip paper strip test? If so, explain how this is known. If the above questions cannot be answered without resort to speculation, the VA examiner must address whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 9. ALSO, obtain an addendum VA medical opinion addressing the etiology of the Veteran's chronic kidney disease. Following a complete review of the electronic claims file, including a copy of this REMAND, an appropriate VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current chronic kidney disease began in or is otherwise etiologically related to the Veteran's active duty service, to include as a result of trace urine albumin noted at the July 1979 periodic physical examination? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's chronic kidney disease began in or is otherwise etiologically related to his active duty service, to include exposure to heavy metals as a result of his MOS as a metal worker? The VA examiner is requested to review and comment on the internet articles referenced in the May 2019 informal hearing presentation. (c.) ONLY IF herbicide agent exposure is verified, is it at least as likely as not (50 percent probability or greater) that the Veteran's current chronic kidney disease is the result of verified in-service exposure to herbicide agents? The VA examiner is requested to review and comment on the private medical opinion issued by Dr. SRB and received in September 2021. (d.) ONLY IF service connection is awarded for type II diabetes mellitus, is it at least as likely as not (50 percent probability or greater) that the Veteran's chronic kidney disease is proximately due to, the result of, or aggravated (i.e., underwent any incremental increase in disability, regardless of its permanence) by the Veteran's service-connected type II diabetes mellitus? The VA examiner is requested to review and comment on the December 2015 VA treatment records indicating that the Veteran's type II diabetes mellitus was "beginning to affect [the Veteran's] kidneys." 10. The RO is requested to ensure that all medical opinions issued by the VA examiners are accompanied by complete rationales based on each examiner's clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.