Citation Nr: 21067727 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-27 728 DATE: November 5, 2021 ORDER Entitlement to service connection for type 2 diabetes is granted. Entitlement to service connection for kidney disease is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left foot/ankle disorder is remanded. Entitlement to service connection for a right foot/ankle disorder is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War. 2. The Veteran has type 2 diabetes. 3. The Veteran's service-connected type 2 diabetes proximately caused his kidney disease. CONCLUSIONS OF LAW 1. Exposure to an herbicide agent is presumed based on service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). 2. The criteria for service connection for type 2 diabetes are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for kidney disease are met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 2017. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection In general, service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service-connected. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. For the listed chronic diseases, service connection may be presumed based on a continuity of symptomatology. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for diabetes. In December 2016, the Veteran filed a service-connection claim for diabetes, which was denied by an April 2017 rating decision. The Veteran filed a notice of disagreement (NOD) in December 2017 and VA Form 9 in September 2019. A February 2021 record of Dr. N. G. diagnoses type 2 diabetes. The Veteran competently testified before the Board that he takes medication to control his diabetes. Because the Veteran's service personnel records indicate service in Vietnam from January 1966 to January 1967 and from February 1968 to June 1968, exposure to an herbicide agent is presumed. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Because type 2 diabetes is among the listed diseases, the Veteran's type 2 diabetes may be presumed to have been incurred in wartime service as due to herbicide exposure. On this basis, the claim will be granted. 38 U.S.C. §§ 1101, 1110, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Entitlement to service connection for a kidney disorder. In December 2016, the Veteran filed a service-connection claim for "kidney failure," which was denied by a rating decision of April 2017. The Veteran filed a NOD in December 2017 and VA Form 9 in September 2019. As explained above, the Veteran will be granted service connection for type 2 diabetes. A February 2021 record of Dr. N. G. diagnosed a kidney condition as "Stage III B." Chronic kidney disease is medically classified by five stages based on kidney function. See https://my.clevelandclinic.org/health/diseases/15096-kidney-disease- chronic-kidney-disease. In the opinion of Dr. N. G., the Veteran's kidney condition is likely related to his diabetes. The stated rationale was that there is microalbumin in the urine. There is no negative nexus opinion of record. With the three elements of Wallin having been met, service connection is warranted. REASONS FOR REMAND 3. Entitlement to service connection for hypertension. The Veteran's December 2016 service-connection claim for "blood pressure" was denied by a rating decision of April 2017. The Veteran filed a NOD in December 2017 and VA Form 9 in September 2019. A February 2021 record of Dr. N. G. diagnosed severe hypertension. The doctor stated that he was "not sure" whether it is as likely as not that the hypertension is due to the Veteran's diabetes and/or kidney condition. The opinion is not sufficiently definite to establish a nexus between the current disorder and a service- connected disability. The Veteran's exposure to an herbicide agent is presumed based on his service in the Republic of Vietnam, as indicated by service personnel records. 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e) for which service connection may be presumed based on herbicide exposure. Nonetheless, a claimant may establish service connection for a disability due to herbicide exposure with adequate evidence of actual causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As indicated in Veterans and Agent Orange: Update 11 (2018), the Institute of Medicine (IOM) of the National Academy of Sciences (NAS) has updated its conclusion with respect to herbicide agents and hypertension, finding "sufficient" epidemiologic evidence to identify a positive association between hypertension and herbicide exposure. Hypertension is also a listed "chronic" disease for which service connection may be presumed if the disease is shown as such during service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. To date, no VA medical opinion has been obtained as to the likelihood that the Veteran's hypertension is caused by a disease or injury of service, to include exposure to an herbicide agent, or caused or aggravated by service- connected type 2 diabetes or service-connected kidney disease. The Board will remand for a VA medical examination and nexus opinion. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. In December 2016, the Veteran filed service-connection claims for "hearing" and for tinnitus. A rating decision of April 2017 denied service connection for bilateral hearing loss and for tinnitus. The Veteran filed a NOD in December 2017 and VA Form 9 in September 2019. Hearing loss and tinnitus, as organic disease of the nervous system, are among the listed chronic disorders that may be presumed to have been incurred during service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015. Notwithstanding the presumption, a claimant can establish service connection based upon sufficient evidence of actual causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran had combat service as indicated by his receipt of the Combat Infantryman's Badge. He also received the Parachute Badge. The Veteran testified before the Board that he was exposed to loud noise during service, including from guns fired during his service in Vietnam and the noise of airplanes from which he jumped as a paratrooper in approximately 200 jumps. He states that he made no combat jumps. He also cited a specific incident involving the noise of an exploded 55-gallon drum, which resulted in his eyes being wrapped for approximately two weeks. A service treatment record of April 1971 notes a gasoline burn to the eyes and face. The Board determines that the Veteran's report of acoustic trauma in service is consistent with the circumstances of his service, including combat service, and there is no clear and convincing contrary evidence. Therefore, an in- service injury is established. 38 U.S.C. § 1154; 38 C.F.R. § 3.304 (d). The Veteran's Board testimony was that his hearing was not tested upon service separation. A July 1971 medical separation examination report is, however, of record and contains audiometric findings. In the associated Report of Medical History, the Veteran specifically denied having any past or current hearing loss. The audiometer results in July 1971 were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 [no result] 0 LEFT 0 0 0 [no result] 0 For the entrance examination of February 1965, the audiometer results were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 [no result] 0 LEFT 15 0 0 [no result] 0 In general, notwithstanding that audiometric test results at a veteran's separation from service do not establish disability at that time, a current hearing loss disability and a medically sound basis for attributing the disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In March 2017, the Veteran underwent a VA examination for hearing loss and tinnitus. For both the left ear and right ear, the diagnosis of sensorineural hearing loss in the frequency range of 500 to 4000 Hertz met the definition of a hearing loss disability under 38 C.F.R. § 3.385. Tinnitus was also diagnosed. The examination report acknowledged that the Veteran was a cook and an infantryman during military service, that he fired weapons with his right hand, and that he was exposed to explosions without hearing protection. Nothing was noted with respect to an onset date of bilateral hearing loss. The Veteran was unable to recall exactly when his tinnitus began. The VA examiner offered a negative nexus opinion as to bilateral hearing loss and tinnitus. The rationale concerning bilateral hearing loss was that the Veteran's entrance and exit examinations showed normal hearing sensitivity in both ears, that there was no evidence of permanent or temporary threshold shifts while in the military, and that there was no evidence of acoustic trauma in the Veteran's records. The Veteran's tinnitus, being a symptom associated with the hearing loss, was also determined to be not likely related to an event in military service. A VA examination report and opinion must be adequate." See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board determines that an adequate examination in this case requires a VA clinician to consider the Veteran's competent report as to the onset of his experienced hearing loss and tinnitus. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). The March 2017 examination report and nexus opinions do not address the Veteran's competent testimony before the Board in February 2021 that he was exposed to the harmful noise of enemy fire, an explosion involving a 55-gallon drum, and airplanes during parachute jumps. The VA examiner also did not consider the Veteran's testimony that he experienced hearing loss and tinnitus symptoms during service. The negative nexus opinion of the March 2017 examiner rested, in part, on the reasoning that there was "no evidence of acoustic trauma in [the Veteran's] records." A new medical opinion is needed because the Board has determined, as explained above, that there was acoustic trauma during the Veteran's service. Therefore, on remand, the clinician will be asked to assume, for the purpose of providing a medical nexus opinion, that the Veteran was exposed to loud noise during service as he has described in record evidence and as supported by other record evidence relating to the nature of his service. 6. Entitlement to service connection for a left foot/ankle disorder. 7. Entitlement to service connection for a right foot/ankle disorder. In December 2016, the Veteran filed a service-connection claim for "ankle pain." Service connection for left ankle pain and for right ankle pain were denied by a rating decision of April 2017. The Veteran filed a NOD in December 2017 and VA Form 9 in September 2019. The scope of the Veteran's ankle claims includes any disability that may reasonably be encompassed by the description of the claims, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified before the Board that he experienced pain in both ankles from non-combat parachute jumps in the United States. He stated that he "twisted it a couple different times" during his service. He also referenced being in a walking cast during service due to an ankle injury caused by parachute jumps. The Veteran had combat service as indicated by his receipt of the Combat Infantryman's Badge. He also received the Parachute Badge. He does not allege that he injured either ankle during combat. The Veteran's service entrance examination of February 1965 notes that he dislocated his left ankle in 1962 and that it was currently asymptomatic. The Veteran testified before the Board in February 2021 that he had not had any problems with his ankles prior to military service. The service treatment records note injuries to the left ankle in September 1965 and May 1967. For the separation examination of July 1971, the Veteran was found to have a normal musculoskeletal system. At that time, he denied any past or current swollen or painful joints. The Veteran testified before the Board that he was hospitalized for unspecified injury due to a four-wheeler accident "a couple years ago." In May 2019, the Veteran underwent a VA examination for the ankles. The examiner noted the Veteran's report of bilateral ankle pain "with weather changes." No diagnosis was made. The range of motion for both ankles was normal upon examination, including after three repetitions. The finding was that the Veteran did not have a current diagnosis associated with either ankle. Imaging of May 2019 showed a moderate-sized calcaneal spur of the right foot and a large plantar calcaneal spur of the left foot. For the right foot, the first MP joint was markedly narrowed, with spurring, sclerosis, and a small subchondral cyst laterally. For the left foot, the first MP joint showed narrowing with sclerosis and spurring that was predominantly lateral. A VA examination report and opinion must be adequate." See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board determines that an adequate examination in this case requires a VA examiner to consider the Veteran's competent report as to the onset of his experienced ankle symptoms. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). While the VA examiner acknowledged that the Veteran received the Parachutist Badge, she did not address the Veteran's hearing testimony that he injured both ankles during service from some 200 jumps. In assessing whether there is a current disorder, the examiner must also consider whether the ankle pain reported by the Veteran during weather changes limits the range of motion of either ankle. Pain itself can be a disability if it rises to the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). A VA examiner is required to offer a flare-up opinion based on estimates derived from information procured from relevant sources, including lay (non-expert) statements, as to any additional functional loss during flare-ups of musculoskeletal disability. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, consideration must be given not only to disorders of the ankle joints but also to the abnormalities of the feet as shown by May 2019 imaging. See Clemons, supra. The matters are REMANDED for the following action: 1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain such records should be documented in the record. 3. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. The examiner must opine as to whether the Veteran's hypertension at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include presumed exposure to an herbicide agent; b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; or e. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include type 2 diabetes or kidney disease, and to include medication taken for any service- connected disability. The examiner's report must give specific consideration to the National Academy of Sciences Institute of Medicine finding, in Veterans and Agent Orange: Update 11 (2018), of sufficient epidemiologic evidence to identify a positive association between hypertension and herbicide exposure. Notify the examiner that the mere fact that an evidentiary presumption has not been established for a diagnosed disorder based on herbicide exposure is not dispositive of the issue of a nexus between a current disorder and service. Consideration must still be given to the likelihood of actual causation by the herbicide exposure. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 4. Obtain an opinion from an appropriate clinician as to the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The clinician must opine as to whether the Veteran's bilateral hearing loss and/or tinnitus at least as likely as not: a. Is related to any in-service injury, disease, or event, to include the Veteran's competent account of the onset and history of his experienced hearing loss and tinnitus symptoms; b. Had its inception during a period of active duty service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. A new VA audiological examination may be scheduled if needed to provide an adequate medical opinion. Notify the clinician that, for the purpose of providing the requested medical nexus opinions as to bilateral hearing loss and tinnitus, he or she must presume that the Veteran was exposed to loud noise during service as he described in his testimony before the Board in February 2021. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that laypersons such as the Veteran are competent to attest to first-hand knowledge gained through the senses, including observable or experienced symptomatology such as hearing difficulty and ringing in the ears. Notify the clinician that, in general, notwithstanding that audiometric test results at a veteran's separation from service do not establish disability at that time, a current hearing loss disability and a medically sound basis for attributing the disability to service may serve as a basis for a grant of service connection for hearing loss. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be given. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 5. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any disorder of the left foot/ankle and/or right foot/ankle. The examiner must opine as to whether any such disorder, to include the abnormalities shown by May 2019 imaging of the feet, at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include the Veteran's account of an in- service onset of bilateral ankle pain; b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. In assessing the range of motion of the left ankle and the right ankle, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, including any flare-ups experienced during weather changes. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the examiner that the scope of the Veteran's ankle claims includes any disability, including any foot disorder, that may reasonably be encompassed by the description of the claims, reported symptoms, and the other information of record. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.