Citation Nr: 21075143 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 20-12 668 DATE: December 17, 2021 REMANDED Entitlement to service connection for chronic kidney disease to include as a result of exposure to herbicides or contaminated water at Camp Lejeune and/or as secondary to ischemic heart disease is remanded. Entitlement to service connection for hypertension to include as a result of exposure to herbicides or contaminated water at Camp Lejeune and/or as secondary to ischemic heart disease is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from February 1963 to February 1967, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in September 2021 with the undersigned Veterans' Law Judge (VLJ). 1. Entitlement to service connection for chronic kidney disease to include as a result of exposure to herbicides or contaminated water at Camp Lejeune and/or as secondary to ischemic heart disease is remanded. In March 2018, VA performed a records review and issued a Camp Lejeune contaminated water medical opinion disability benefits questionnaire (DBQ) in evaluating the Veteran's chronic kidney disease (CKD). See March 2018 CKD DBQ. The examiner noted the Veteran spent a total of 602 days stationed in Camp Lejeune between May 1963 and May 1966. The examiner confirmed a current diagnosis of CKD stage III. The examiner opined that it is less likely than not that the Veteran's CKD is caused by or a result of the Veteran's exposure to contaminated water in Camp Lejeune. Id. The examiner supported his opinion by citing to the Veteran's hypertension, pre-diabetes, and coronary artery disease (CAD) (the Veteran is currently service-connected for ischemic heart disease) as risk factors in developing CKD. Id. The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom; Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Here, the March 2018 examination report raises the issue of entitlement to service connection for disability, for a CKD condition as secondary via aggravation per the Veteran's service-connected disabilities, (specifically, ischemic heart disease). See March 2018 CKD DBQ. No opinion of record addresses this theory. As such, an opinion as to whether the Veteran's CKD condition is at least as likely as not caused by or aggravated by his service-connected disabilities is warranted. See 38 C.F.R. § 3.159(c)(4). On remand, while addressing aggravation of the Veteran's CKD condition, the examiner should also provide an opinion that complies with the precedential case Ward v. Wilkie, (holding that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. 31 Vet. App. 233 (2019). In Ward, the Court found that service connection is warranted for any incremental increase in disability any additional impairment of earning capacity in a non-service-connected disability resulting from service-connected conditions regardless of its permanence. 2. Entitlement to service connection for hypertension to include as a result of exposure to herbicides or contaminated water at Camp Lejeune and/or as secondary to ischemic heart disease is remanded. In March 2018, the Veteran presented to a VA hypertension examination where he was diagnosed with hypertension. See March 2018 VA Hypertension Examination. In the accompanying opinion the examiner opines that the Veteran's hypertension is less likely than not proximately due to or the result of Veteran's service-connected ischemic heart disease (IHD) (also referred to as coronary artery disease (CAD)). See March 2018 VA Hypertension Opinion. The examiner further opines that the two conditions (hypertension and IHD/CAD) "are not medically related." Id. Lastly, the examiner notes the medical literature does not support that hypertension can be caused by IHD/CAD. Id. As noted above, the Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom; Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Here, the March 2018 examination raises the issue of entitlement to service connection for disability, for a hypertension condition as secondary via aggravation per the Veteran's service-connected disabilities (specifically, ischemic heart disease See March 2018 VA Hypertension Opinion. No opinion of record addresses this theory. As such, an opinion as to whether the Veteran's CKD condition is at least as likely as not caused by or aggravated by his service-connected disabilities is warranted. See 38 C.F.R. § 3.159(c)(4). Again, on remand, while addressing aggravation of the Veteran's hypertension condition, the examiner should also provide an opinion that complies with the precedential case Ward v. Wilkie, (holding that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. 31 Vet. App. 233 (2019). The Court found that service connection is warranted for any incremental increase in disability any additional impairment of earning capacity in a non-service-connected disability resulting from service-connected conditions regardless of its permanence. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's CKD. The entire claims file must be provided to, and reviewed by, the examiner. The Examiner is asked to: (a.) Provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's CKD had its onset during, or is otherwise related to, the Veteran's active duty service, to include herbicide exposure in Vietnam AND his exposer to contaminated water at Camp Lejeune. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's CKD was caused by his service-connected IHD/CAD. iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's CKD underwent an incremental increase (aggravated), REGARDLESS OF PERMANENCE, due to his service-connected IHD/CAD. (b.) In addressing aggravation the examiner is asked to specifically address the March 2018 opinion noting CAD as a contributing risk factor to CKD, taking into account the Veteran is service-connected for IHD/CAD. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 2. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's hypertension. The entire claims file must be provided to, and reviewed by, the examiner. The Examiner is asked to: (a.) Provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's hypertension had its onset during, or is otherwise related to, the Veteran's active duty service, to include herbicide exposure in Vietnam AND his exposer to contaminated water at Camp Lejeune. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's hypertension was caused by his service-connected IHD/CAD. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's hypertension underwent an incremental increase (aggravated), REGARDLESS OF PERMANENCE, due to his service-connected IHD/CAD. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.