Citation Nr: 21074656 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 18-50 572 DATE: December 16, 2021 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicide agents, is granted. Entitlement to service connection for a kidney disability, to include as secondary to type II diabetes mellitus, is denied. REMANDED Entitlement to service connection for a disability manifested by pain and discomfort of the bilateral upper extremities, including as due to exposure to herbicide agents and/or secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to service connection for a disability manifested by pain and discomfort of the bilateral lower extremities, including as due to exposure to herbicide agents and/or secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to service connection for a vision disability, including as due to exposure to herbicide agents and/or secondary to service-connected type II diabetes mellitus, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during his active duty service; and type II diabetes mellitus is presumed to be associated with exposure to herbicide agents. 2. The preponderance of the evidence is against a finding that the Veteran has a diagnosis for a kidney disability proximate to the claim, or during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a kidney disability, to include as secondary to type II diabetes mellitus, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 1990. These mattes come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issues on appeal in July 2021 for additional development pursuant to a United States Court of Appeals for Veterans Claims (Court) order that vacated and remanded the issues on appeal denied by an April 2019 Board decision. Specifically, the Board directed the RO to afford the Veteran with VA examinations. A review of the record shows substantial compliance with the Board's remand directives with regard to the issues of entitlement to service connection for type II diabetes mellitus and a kidney disability. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the Board finds remand is necessary regarding the issues of entitlement to service connection for a disability manifested by pain and discomfort of the bilateral upper and lower extremities, and a vision disability. In the Board's July 2021 decision, the Board also addressed the issue of entitlement to service connection for an acquired psychiatric disorder. In an October 2021 rating decision, the RO granted service connection for an acquired psychiatric disability. As this decision represents a full grant of the benefit sought, this issue is no longer on appeal. The Board notes the Veteran initially sought service connection for bilateral peripheral neuropathy in all extremities. See January 2017 VA Form 21-526. However, the Veteran described his symptoms included pain and discomfort in all extremities. See April 2017 affidavit. As such, the Board has recharacterized the Veteran's claim as entitlement to service connection for a disability manifested by pain and discomfort of the bilateral upper and lower extremities. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Service Connection Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability if it 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicide agents. The Veteran seeks service connection for type II diabetes mellitus, to include as due to exposure to chemicals, primarily, herbicide agents. See January 2017 VA Form 21-526. Certain diseases may be presumed to have been incurred in service for Veterans exposed to herbicide agents, to include type II diabetes mellitus. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(d); 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that the herbicide exposure is established. Id. In this case, the competent and credible medical evidence of record clearly demonstrates the Veteran has a current diagnosis of type II diabetes mellitus. See June 2021 VA treatment records; August 2021 VA examination. Therefore, the first Shedden element of service connection has been established. See Shedden, 381 F.3d at 1166-67. In regard to the second element of service connection, the Board, in its July 2021 remand, determined the evidence of record is in relative equipoise as to whether the Veteran was exposed to herbicide agents during service and found the second Shedden element of service connection is satisfied. See Shedden, 381 F.3d at 1166-67. In other words, resolving reasonable doubt in favor of the Veteran, the Board determined the Veteran was exposed to herbicide agents during his active duty service. As the Board finds that the Veteran was exposed to herbicide agents during his active duty service, and type II diabetes mellitus is a disease that has been shown to be associated with exposure to herbicide agents; it is presumed that his disorder was incurred in service. The Board notes there is no other evidence to rebut the presumption. Thus, with resolution of any doubt in the Veteran's favor, service connection for type II diabetes mellitus is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for kidney disability, to include as secondary to type II diabetes mellitus. The Veteran seeks service connection for a kidney disability, including as due to exposure to chemicals, primarily, herbicide agents. See January 2017 VA Form 21-526. The Veteran also asserts that he has a kidney disability secondary to his type II diabetes mellitus. See August 2017 Notice of Disagreement (NOD). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, or during the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In regard to the first element of the Shedden analysis, the probative evidence of record does not show that the Veteran has a current kidney disability diagnosed proximate to the claim or during the appeal period. In that regard, the Veteran's VA treatment records include chronic renal impairment among one of the active problems listed in a primary care note. See March 2017 VA treatment records. However, this is inconsistent with the other evidence of record. For example, the Veteran's test results demonstrate that his kidney function test was slightly elevated and is stable. See March 2017 VA treatment records. In February 2018, testing results were normal, and renal function was normal. See February 2018 VA treatment records. In January 2019, test results show the Veteran's renal function was normal. See January 2019 VA treatment records. In December 2019, the Veteran's kidney function test show that his creatinine was minimally elevated at 1.3 and the VA physician noted that normal is 1.2. See December 2019 VA treatment records. The VA physician also noted that a urine drug screen was positive for cocaine. Id. The Veteran was afforded a VA examination in August 2021. The Veteran reported that his condition began in approximately 2010 and that a doctor told him of kidney problems from a blood test; however, he could not provide any details regarding the course of his condition since that time. See August 2021 VA examination. The VA examiner determined that there was no diagnosis of a kidney disability. Id. The VA examiner noted there was no objective evidence of a kidney condition. Id. The VA examiner noted that the Veteran's test results showed that his creatinine was minimally elevated. Id. However, the VA examiner noted it was most likely the mildly elevated creatinine was due to the effects of cocaine abuse and does not indicate any chronic kidney condition. Id. The VA examiner noted review of the Veteran's claims file, medical records, and conducted an in-person examination. Id. Therefore, the Board finds the August 2021 VA examination adequate for decision making purposes and entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board notes the Veteran is competent to report observable symptoms; however, the extent the Veteran asserts that he has a kidney disability, the Board notes that he has not been shown to have the medical training necessary to diagnose such condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran, nor his representative, have provided any competent evidence that demonstrates the Veteran has a current kidney disability diagnosis proximate to the claim, or during the appeal period. In sum, the Board finds that there is no competent evidence of a current disability, and there is no valid claim. Brammer, 3 Vet. App. at 225. In this case, there is an absence of proof of a kidney disability proximate to the claim, or during the appeal period. Without evidence of a current diagnosis of a disability, the Board need not address the other elements of service connection. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for a disability manifested by pain and discomfort of the bilateral upper extremities, including as due to exposure to herbicide agents, to include as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for a disability manifested by pain and discomfort of the bilateral lower extremities, including as due to exposure to herbicide agents, to include as secondary to service-connected type II diabetes mellitus is remanded. As noted, the Veteran initially sought service connection for peripheral neuropathy of the bilateral upper and lower extremities, including as due to exposure to chemicals, primarily, herbicide agents. See January 2017 VA Form 21-526. The Veteran also asserts that his condition is secondary to his type II diabetes mellitus. See August 2017 NOD. The Veteran reported that he was exposed to some type of herbicide toxin and that he often experiences muscle pain. See March 2017 statement in support of claim. As noted, the Board has conceded the Veteran's exposure to herbicide agents during his active duty service. The Veteran reported that his "peripheral neuropathy" occurs in both his upper and lower extremities, and that it has becoming increasingly more difficult to walk as his symptoms were uncomfortable and painful. See April 2017 Affidavit. The Board previously denied the Veteran's claim in an April 2019 decision that the Veteran appealed to the Court. In a December 2020 Memorandum Decision, the Court found that the Veteran was not competent to provide a diagnosis, namely peripheral neuropathy, but was obviously describing his symptomatology that he asserted was related to another disorder such as diabetes mellitus. See December 2020 Court Memorandum Decision. In July 2021, the Board remanded the issue for further development pursuant to the December 2020 Court Memorandum Decision. Specifically, the Board directed the RO to afford the Veteran with a VA examination to determine the nature and etiology of the Veteran's claim for peripheral neuropathy, to include consideration of any neurological disorder of the extremities manifested by pain and discomfort affecting the ability to walk. The Veteran was afforded a VA examination in August 2021. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The August 2021 VA examiner noted the Veteran's report of experiencing bilateral hip pain, pain in the joints of his fingers, and sometimes numbness in the tips of his fingers. See August 2021 VA examination. The VA examiner determined there was no diagnosis of peripheral neuropathy and no symptoms attributable to diabetic peripheral neuropathy. Id. The VA examiner determined that the Veteran's symptoms were due to MS and that there was no objective evidence of diabetic peripheral neuropathy. Id. The VA examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. However, there is no evidence of record that demonstrates the Veteran has a diagnosis of MS. The VA examiner did not provide any discussion or further rationale regarding whether the Veteran's pain of the bilateral upper and lower extremities is related to his service, including exposure to herbicide agents. Additionally, the VA examiner did not discuss whether the Veteran's symptoms of pain in his bilateral upper and lower extremities resulted in functional impairment, even if there is no identifying underlying diagnosis of peripheral neuropathy. The Board notes that while pain alone may not constitute a disability, pain may rise to a level of functional impairment that impacts earning capacity, which would then qualify pain as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, there is competent evidence of pain of the bilateral upper and lower extremities, including the Veteran's statements, and therefore potential presence of a disability under Saunders that is related to the Veteran's service and/or service-connected diabetes mellitus. As such, remand is necessary to obtain an addendum medical opinion. Stegall, 11 Vet. App. at 271. Entitlement to service connection for a vision disability, including as due to exposure to herbicide agents and/or secondary to service-connected type II diabetes mellitus, is remanded. The Veteran seeks service connection for a vision disability, including as due to exposure to chemicals, primarily, herbicide agents. See January 2017 VA Form 21-526. The Veteran also asserts that his condition is secondary to his type II diabetes mellitus. See August 2017 NOD. The Veteran's VA treatment records demonstrate diagnoses for senile nuclear cataracts and dry eye syndrome. See April 2018 and June 2021 VA treatment records. The Veteran was afforded a VA examination in August 2021. The VA examiner confirmed the Veteran's diagnosis for bilateral nuclear cataracts. See August 2021 VA examination. The VA examiner noted the Veteran has occasional symptoms of dryness with rare use of artificial tears, but determined the Veteran had no objective signs of a dry eye. Id. The VA examiner opined that the Veteran's eye condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. As rationale, the VA examiner noted the Veteran's nuclear cataracts were not visually significant, and unrelated to any in-service event, disease, or trauma. Id. The VA examiner opined that the Veteran's nuclear cataracts are compatible with age and less likely than not related to diabetes mellitus. Id. As rationale, the VA examiner noted the cataracts appear to be a normal age related sclerosis which is age appropriate. Id. However, the VA examiner did not address the Veteran's VA treatment records demonstrating a diagnosis for dry eye syndrome and did not explain why the Veteran did not have a dry eye condition. The examiner did not address the Veteran's statement that he was told historically that he had elevated ocular pressure indicating glaucoma. See September 2014 VA Optometry Note. Additionally, the VA examiner did not provide any further rationale regarding why the Veteran's eye condition was not related to exposure to chemicals, primarily, herbicide agents as directed in the prior July 2021 Board remand directives. As such, remand is necessary to obtain an addendum medical opinion. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Forward the record and copy of this Remand to the examiner who provided the August 2021 examination and medical opinion, or, if that examiner is unavailable, to another suitable qualified examiner for completion of an addendum opinion to determine the nature and etiology of the Veteran's claim of a disability manifested by pain and discomfort of the bilateral upper and lower extremities. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner should address the following: (a.) Identify any bilateral upper and lower extremity disability manifested by pain and discomfort proximate to, and during the pendency of the claim, by (1) diagnosis or (2) complaints of pain that result in a functional impairment. (b.) The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed bilateral upper and lower extremities disability is etiologically related to the Veteran's service, including exposure to any chemicals, primarily herbicide agents. (c.) The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed bilateral upper and lower extremities disability is proximately due to, or the result of, the Veteran's service-connected type II diabetes mellitus. (d.) The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed bilateral upper and lower extremities disability is aggravated (worsened) by the Veteran's service-connected type II diabetes mellitus. A complete rationale should be given for all opinions and conclusions expressed. The examiner must address the Veteran's lay statements regarding experiencing pain and discomfort in his bilateral upper and lower extremities that result in difficulty walking. See April 2017 Affidavit. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. 2. Forward the record a copy of this Remand to the examiner who provided the August 2021 examination and medical opinion, or, if that examiner is unavailable, to another suitable qualified examiner for completion of an addendum opinion to determine the nature and etiology of the Veteran's vision disability. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner should address the following: (a.) Identify any vision/eye disabilities demonstrated proximate to, and during the pendency of the claim, including bilateral nuclear cataracts, dry eye syndrome and glaucoma. The examiner must address the Veteran's VA treatment records demonstrating bilateral dry eye syndrome. See April 2018 and June 2021 VA treatment records. If any such diagnosis is incorrect, the examiner must explain why such diagnosis is incorrect. In addition, the examiner must address whether or not the Veteran been diagnosed with glaucoma at any time since the date of his claim in January 2017. Why or why not? The examiner must address the Veteran's statement that he was told historically that he had elevated ocular pressure indicating glaucoma. See September 2014 VA Optometry Note. (b.) The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed vision/eye disability is etiologically related to the Veteran's service, including exposure to any chemicals, primarily herbicide agents. (c.) The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed vision/eye disability is proximately due to, or the result of, the Veteran's service-connected type II diabetes mellitus. (d.) The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed vision/eye disability is aggravated (worsened) by the Veteran's service-connected type II diabetes mellitus. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.