Citation Nr: 21076472 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 20-21 684 DATE: December 23, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, as a result of in service exposure to herbicide agents, is granted. REMANDED Entitlement to an increased initial rating for the service-connected coronary artery disease, evaluated as 10 percent disabling prior to May 26, 2017; 30 percent disabling from May 26, 2017 to October 11, 2021; and 60 percent disabling from October 12, 2021 is remanded. Entitlement to an initial compensable rating for scar, status post coronary artery bypass graft, is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for hypertension, to include as secondary to in-service exposure to herbicides and as secondary to the service-connected coronary artery disease, is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his diabetes mellitus, type II, is due to his presumed herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, as secondary to in service herbicides exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1964 to January 1968. This appeal to the Board of Veteran's Appeals (Board) arose from a February 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In February 2021, the Board remanded the claims for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). Service Connection Diabetes Mellitus, Type II A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this current matter, the Veteran asserts that he developed diabetes mellitus, type II, as a result of herbicide agent to which he was exposed while serving in Vietnam. Service personnel records confirm his service in Vietnam during the applicable time period. Therefore, he is presumed to have been exposed to herbicide agents. Diabetes mellitus is one of the disease specified to be entitled to presumptive service connection due to exposure to herbicide agents. The remaining question in this matter is whether the Veteran has a current diagnosis of diabetes mellitus. There is conflicting medical evidence regarding this medical question. VA treatment records indicate that the Veteran does not have a diagnosis of diabetes. The VA examiners have determined that the Veteran does not meet the criteria for diabetes mellitus. The most recent VA examination note that he has impaired fasting glucose. Private medical records show that the Veteran is being treated for diabetes. It was noted that he met the criteria for diabetes based on glucose tolerance test. He was also noted to be taking metformin, a known medication for treatment of diabetes. After a thorough consideration of the evidence, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran has a current diagnosis of diabetes mellitus, type II. The medical evidence indicates conflicting information regarding a diagnosis, all based on diagnostic and clinical testing. Where there is evidence for and against the claim, the benefit of the doubt should be given to the Veteran. Resolving reasonable doubt in favor of the Veteran, the Board finds that a current diagnosis of diabetes mellitus, type II, is established. As previously stated herein, diabetes mellitus, type II, is among the diseases subject to presumption service connection based on herbicide agent exposure. Accordingly, the criteria for entitlement to service connection for diabetes mellitus, type II, have been met on a presumptive basis, and entitlement to service connection for diabetes mellitus, type II, is warranted. REASONS FOR REMAND Entitlement to an increased initial rating for the service-connected coronary artery disease, evaluated as 10 percent disabling prior to May 26, 2017; 30 percent disabling from May 26, 2017 to October 11, 2021; and 60 percent disabling from October 12, 2021 Entitlement to an initial compensable rating for scar, status post coronary artery bypass graft Service connection for a respiratory disorder Service connection for hypertension, to include as secondary to in-service exposure to herbicides and as secondary to the service-connected coronary artery disease After a thorough consideration of the evidence of the record, the Board finds that a remand is necessary prior to the adjudication of the remaining claims. Based on the Board's February 2021 remand directives, new examinations were provided to the Veteran in October 2021. In November 2021, his representative asserted that the examiner who conducted the examinations is not properly certified under VHA Director 1603, which states that certification to perform general Compensation and Pension examinations required completion of five mandatory training courses. While searching for evidence of certification, the representative states that there were no records found for the examiner when reviewing the Office of Disability and Medical Assessment (DMA) Clinician Lookup Tool. See November 2021 Third Party Correspondence. When a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. Francway v. Wilkie, 940 F.3d 1304 (2019). It was held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. A challenge raised under the above circumstances rebuts the presumption of competency, and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. The challenge here is beyond general assertions of inadequacy and is sufficient to shift the burden of persuasion to VA to establish the examiner's qualifications by providing information about those qualifications to the Veteran. The information provided under the precepts in Francway is fundamental to allowing the Board to make the required factual finding as to whether the medical examiner is competent. These remaining matters should be remanded so that appropriate efforts can be made to provide the Veteran with the requested documents and information. Furthermore, pertaining to the Veteran's claim for service connection for hypertension, the Board directed the AOJ to obtain an opinion that addresses whether his hypertension was due to his presumed herbicide agent exposure. While the October 2021 medical opinion addresses direct service connection, it does not specifically address the Veteran's herbicide agent exposure. The Board takes judicial notice of the existence of the finding by the National Academies of Sciences, Engineering and Medicine (NAS) that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Veterans and Agent Orange: Update 11 (2018); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (regarding judicial notice); see generally Polovick v, Shinseki, 23 Vet. App. 48, 54 (2009) (NAS's statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent evidence that VA may "consider when assessing whether the totality of the evidence is sufficient to establish service connection on a direct basis"). Pertaining to the theory of secondary service connection, regarding aggravation, the examiner simply opined that there was no evidence regarding aggravation of the Veteran's hypertension by his service-connected CAD. This is insufficient to support the conclusion reached. Thus, on remand, the AOJ should obtain another medical opinion that specifically address whether the Veteran's hypertension is related to his presumed herbicide agent exposure and that considers the matter of aggravation. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran and his representative with the requested documents and information sufficient to support the expertise and qualifications of the October 2021 VA examiner. All attempts made to obtain and provide the Veteran with the aforementioned information should be documented in the Veteran's claim file. If the information requested is unavailable, inform the Veteran of such and of the efforts made to obtain them. 2. Refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's hypertension. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) It is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension had its onset in, or is otherwise attributable to, his service, to include his conceded in service exposure to herbicides. In providing this opinion, the examiner should discuss the finding by NAS that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used in the Vietnam War. The examiner is asked to consider and discuss the likelihood that the Veteran's hypertension is related to his exposure to herbicide agents, given the particulars of this Veteran's medical history, family history, and the absence or presence of other risk factors. The Board acknowledges that there is no presumption of service connection for hypertension due to exposure to herbicide agents. However, the examiner cannot base the opinion solely on the fact that hypertension is not recognized as a presumptive disease due to herbicide agent exposure. Solely relying on the lack of in-service medical documentation is not sufficient in this matter. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated (i.e., worsened beyond normal progression) by his service-connected CAD. If his hypertension is deemed not to be aggravated by his CAD, the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran's hypertension is aggravated by his CAD, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of hypertension is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the issues remaining on appeal. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.