Citation Nr: 21065473 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-15 424A DATE: October 26, 2021 ORDER Service connection for a respiratory disorder, to include asthma, chronic bronchitis, and chronic obstructive pulmonary disease (COPD) is denied. A rating higher than 40 percent for diabetes mellitus, type II (DM) is denied. REMANDED Service connection for chronic kidney disease is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a respiratory disorder began during active service or is otherwise related to an in-service injury or disease. 2. During the period on appeal, the Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider and did not have complications that would not be compensable if separately evaluated. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating higher than 40 percent for DM are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969. His awards and decorations include the Purple Heart, the Republic of Vietnam Gallantry Cross, and the Combat Medical Badge among others. The Veteran died in October 2016 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011 and May 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and May 2021, the Board remanded this matter for additional development. Service Connection Respiratory Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contended that his respiratory disorder was due to exposure to Agent Orange. For the following reasons, the Board disagrees and finds that service connection is not warranted. The Veteran was diagnosed with asthma, chronic bronchitis, and COPD. He served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. The Veteran also had pneumonia during active service. As such, he meets the first two elements for service connection. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected even though there is no record of such disease during service. For the purpose of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operation in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. However, asthma, chronic bronchitis, and COPD are not included as diseases where presumptive service connection is available. As such, presumptive service connection is not applicable to the Veteran's claim. Though service connection cannot be granted on a presumptive bases, service connection is still available on a direct basis. The evidence concerning the third element for direct service connection, medical nexus, consists of opinions from VA examiners and clinicians. In March 2013, the Veteran underwent a VA examination. The examiner opined that it was less likely than not that the Veteran's asthma and bronchitis were due to active service. Their rationale was that the Veteran's discharge examination is absent for any cough and bronchitis symptoms and the Veteran noted "no" for any asthma, chronic cough, or bronchitis. The examiner also noted that there was a gap of more than forty years in the submitted medical records of any respiratory symptoms. The examiner is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. After remand, in August 2020 another opinion was obtained. The VA clinician opined that it was less likely than nor that the Veteran's asthma with bronchitis was due to exposure to Agent Orange. Their rationale was that the onset of a respiratory condition was in 1979 with a diagnosis of intrinsic and extrinsic asthma and subsequent follow up in 1980 suggested asthma was aggravated by dust exposure in the Veteran's bedroom. The clinician also found that there is no biologic plausibility to establish causal nexus between Agent Orange exposure and onset of asthma after a delay of ten years. The clinician is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. After another remand, in May 2021 another opinion was obtained. The VA clinician opined that it was less likely than not that the Veteran's COPD was due to active service. Their rationale was that on separation there were no findings for ongoing acute or chronic treatment of COPD, medical records do not reveal continuous ongoing medical treatment or aggravation of acute or chronic COPD from discharge to present day, and that medical literature does not reveal herbicide exposure to be a risk factor or direct cause of COPD. The clinician is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. The Board acknowledges the Veteran's contention that his respiratory disorder was due to exposure to Agent Orange. Though the Veteran is competent to describe the circumstances of his service, the Veteran or the Appellant have not shown that the Veteran had the requisite medical knowledge to provide a medical nexus opinion for his disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board affords the Veteran's lay statement less probative weight and affords more probative weight to the March 2013, August 2020, and May 2021 opinions. Accordingly, the preponderance of the evidence is against a finding that the Veteran had a respiratory disorder related to active service. Because the preponderance of the evidence weighs against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, service connection for a respiratory disorder is denied. Increased Rating Diabetes Mellitus Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran's DM is rated 40 percent disabling under DC 7913. 38 C.F.R. § 4.119, DC 7913. Under DC 7913, a 40 percent evaluation is assigned where diabetes requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A higher 60 percent evaluation is assigned where the disease requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent evaluation is assigned where diabetes requires more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note (1) states that compensable complications of diabetes are to be evaluated separately. Noncompensable complications are considered part of the diabetic process under DC 7913. The criteria for rating diabetes are conjunctive and successive; each higher rating includes the same criteria as the lower rating, plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). "Regulation of activities" is required for all ratings in excess of 20 percent and is defined by DC 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 36364 (2006). In May 2010, the Veteran underwent a VA examination for his claim. The examination indicates that the Veteran controls his diabetes with insulin and diet. He reported no episodes of ketoacidosis or hypoglycemia which required hospitalization and that he has not visited a diabetic care provider for ketoacidosis or a hypoglycemic reaction. The examiner found no secondary complications related to the eye, skin, peripheral arteries, renal system, and neurological system. A January 2012 VA examination indicates that the Veteran's treatment for DM consisted of oral medication, insulin, and a restricted diet. The Veteran did report that he was hospitalized for hypoglycemia, but this was in 2001 and that hospitalization is required less than once a year. No episodes of ketoacidosis requiring hospitalization were reported. The examiner found no secondary complications related to the eyes, the heart, skin, peripheral arteries, peripheral edema, the renal system, the gastrointestinal system, and amputation. In April 2015, the Veteran underwent another VA examination for his claim. The Veteran's treatment for DM consisted of prescribed insulin. The Veteran visited a diabetic care provider less than two times a month and had no hospitalization episodes due to ketoacidosis or hypoglycemia. In August 2020, VA sought an opinion on whether the Veteran required regulation of activities due to his service-connected DM. A VA clinician opined that it was as likely as not that the Veteran required regulation of activities due to his service-connected DM. The examiner also noted that the Veteran did not have documented episodes of hypoglycemia. VA treatment records note a history of DM with treatment by insulin. In May and June 2015, it was noted that the Veteran had significant hypoglycemic events, but they did not require hospitalization or visits to a diabetic care provider. After a review of the record, the Board finds that a rating higher than 40 percent is not warranted for the Veteran's DM. The preponderance of the evidence documents DM with treatment including insulin, restricted diet, and regulation of activities. There is no indication that during the appellate period the Veteran had episodes of ketoacidosis or hypoglycemia requiring one or two hospitalizations a year. VA treatment records do indicate that the Veteran did visit his diabetic care provider twice in May and June 2015, but on examination he has not displayed complications of diabetes that would not be compensable. Accordingly, the Veteran's claim for a higher rating for DM is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. REASONS FOR REMAND Chronic Kidney Disease Prior to his passing the Veteran had a diagnosis of stage III chronic kidney disease. VA treatment records suggest that his chronic kidney disease could be associated with his DM. No VA clinician has opined whether the Veteran's chronic kidney disease was caused by or aggravated beyond its natural progression by his service-connected DM. As such, a remand is necessary to obtain an opinion. (Continued on the next page) The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding whether the Veteran's chronic kidney disease was at least as likely as not proximately due to his service-connected diabetes mellitus or aggravated beyond its natural progression by his service-connected diabetes mellitus. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.