Citation Nr: 21071680 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-63 257 DATE: December 1, 2021 ORDER Entitlement to service connection for chronic kidney disease as secondary to service-connected diabetes mellitus type II is granted. REMANDED Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus type II is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran's chronic kidney disease is caused or aggravated by his service connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic kidney disease as secondary to service connected diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to March 1971, to include service in the Republic of Vietnam. The matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board in his December 2016 substantive appeal. A Board hearing was scheduled for April 2020 and rescheduled for June 2020. However, the Veteran submitted a April 2020 statement requesting to cancel his scheduled hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. Service Connection 1. Entitlement to service connection for chronic kidney disease as secondary to service-connected diabetes mellitus type II is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for chronic kidney disease and erectile dysfunction as secondary to the Veteran's service-connected diabetes mellitus type II. A November 2017 VA nephrology treatment note indicates that the Veteran suffered from stage III chronic kidney disease that was secondary to diabetes mellitus and overly aggressive blood pressure control. There is no contrary etiology opinion of record as the June 2014 VA examiner did not provide an opinion as to secondary service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for chronic kidney disease as secondary to service connected diabetes mellitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus type II is remanded. The Veteran seeks service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus type II. The Veteran was provided a VA examination in June 2014 where the VA examiner reviewed the claims file and provided an examination. The examiner provided a negative nexus opinion and supported the opinion with the explanation that the two conditions are not medically related, and that the claimed erectile dysfunction is entirely separate from service-connected condition. The Board finds the opinion incomplete as the opinion did not explain why the two conditions are separate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, an opinion as to secondary aggravation was not provided. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Furthermore, the Board notes that the Veteran and his representative submitted an article in November 2018 stating a potential connection between erectile dysfunction and diabetes mellitus type II. Therefore, an addendum VA opinion is warranted to address this medical opinion in relation to the Veteran's medical condition and to obtain a complete VA opinion that addresses the November 2018 article and rationale supporting the opinion. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the claims file should be provided to the VA examiner to provide an addendum VA opinion to determine the etiology of his claimed erectile dysfunction as secondary to service-connected diabetes mellitus type II. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is etiologically related to or otherwise aggravated by the Veteran's service-connected diabetes mellitus type II? The examiner is specifically directed to the November 2018 medical article suggesting an etiological connection between erectile dysfunction and diabetes mellitus type II. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state 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). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.