Citation Nr: 21007550 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-39 070 DATE: February 9, 2021 ORDER Entitlement to service connection for degenerative joint disease (DJD) of the left knee, for substitution purposes, is granted. Entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents, for substitution purposes, is granted. Entitlement to service connection for kidney disorder, diagnosed as chronic kidney disease, to include as secondary to diabetes mellitus, for substitution purposes, is granted. REMANDED Entitlement to service connection for thyroid disorder, to include as secondary to diabetes mellitus, for substitution purposes, is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt, the Veteran’s left knee condition was due to his service. 2. Resolving reasonable doubt, the Veteran’s hypertension was due to his service, specifically exposure to herbicide agents. 3. A medical nexus has been established between the Veteran’s kidney disease and his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease (DJD) of the left knee, for substitution purposes, have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.303, 3.309 (2019). 2. The criteria for service connection for hypertension, to include as a result of exposure to herbicide agents, for substitution purposes, have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for kidney disorder, diagnosed as chronic kidney disease, to include as secondary to diabetes mellitus, for substitution purposes, have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1968 to March 1971. The Veteran died in August 2018. The Appellant is his surviving spouse. In October 2018, the Board dismissed the Veteran’s claims due to his passing and prior to the substitution of the Appellant in his appeal. In January 2019, the Appellant was properly substituted. In August 2019, the Board denied entitlement to service connection for a left knee condition. The Board reopened the claims of entitlement to service connection for heart condition and hypertension, and remanded the remaining claims for further evidentiary development. The Appellant appealed the August 2019 decision, as it pertained to the denial of service connection for left knee condition, to the Court of Appeals for Veterans Claims (CAVC or Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the case to the Board for action consistent with the JMPR. In November 2020, the Board denied entitlement to service connection for a heart condition and remanded the remaining claims for further evidentiary development. The Board notes that VA medical opinions have been associated with the file. The AOJ has not reviewed these reports and provided a Supplemental Statement of the Case (SSOC) adjudicating the claims. Based on the Board’s favorable determinations regarding the issues of entitlement to service connection for left knee condition, hypertension, and kidney disorder, a remand is not necessary in order for those reports pertaining to those issues to be reviewed. As for the issues of entitlement to service connection for thyroid disorder and an increased rating for diabetes mellitus, this evidence will be addressed by the AOJ in conjunction with the remand directives below. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. §§ 3.307, 3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. § 3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. § 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Degenerative joint disease of the left knee The Appellant is seeking entitlement to service connection for the Veteran’s left knee condition. The evidence of the record establishes that the Veteran had a diagnosis of degenerative joint disease (DJD) of the left knee. Regarding an in-service injury or event, the service treatment records (STRs) show that in March 1969, he complained of his left knee locking and popping. In April 1969, the Veteran reported experiencing pain and popping in his left knee. It was noted that the history was not indicative of an arthritis problem. Regarding whether there is a nexus, the August 2013 VA examiner opined that it was less likely than not that the Veteran’s condition was due to his in-service complaints. The examiner explained that the Veteran was treated in “1969 and 1970” for popping and locking of the knees. The STRs indicated two separate evaluations. The problems were not addressed in medical documentation until 2001. The examiner concluded that there was no indication in the STRs of an onset of a chronic condition of the knees during active service. As explained in the June 2020 JMPR, the examiner failed to address whether the Veteran’s symptoms in service could be related to the development of his DJD. In November 2020, a VA clinician opined that it was “not likely that [the Veteran’s] DJD would be related to in service complaint with no continued record of care.” The clinician noted that he was seen in March 1969 for his left knee and that the x-ray was normal. The Veteran was seen in April 1969 with complaint of both knees popping. The examination was stated to be essentially within normal limits. The clinician noted that the separation examination in March 1971 was silent for a left knee disability. The examination was normal, and he was stated to have been in good condition. The clinician mentioned that the Veteran did not submit any private treatment records from his first year after discharge showing treatment for a left knee injury or disability. The clinician noted that medical records from 1983 did not show evidence of a left knee complaint. The clinician noted that a record from 1998 stated that the Veteran walked four miles a day, six days a week. The clinician opined that the x-ray findings in 2013 showed mild degenerative changes more consistent with the general effects of aging and less likely related to any active duty service event or injury. In this opinion, the November 2020 clinician did not address the October 2001 x-ray report regarding degenerative changes in the Veteran’s left knee, which is many years prior to the 2013 findings. The Board takes note of the symptoms the Veteran experienced in service, which included pain, popping, and locking. At the August 2013 VA examination, the Veteran reported experiencing occasional locking of the knee. In May 2016, the Veteran expressed experiencing frequent popping and locking of the knee. The Veteran also stated that he self-medicated his knee. See May 2016 Hearing Testimony. After a thorough consideration of all of the evidence of the record, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran’s left knee condition is due to his active service. The evidence shows that the Veteran experienced the same left knee symptoms in service and post service. The Veteran also expressed that he self-medicated to treat his knee, which could be an explanation for the lack of medical records noting knee symptoms soon after service. Although these symptoms from service cannot with medical certainty be attributed to the Veteran’s later developed DJD, when thoroughly considering the Veteran's accounts of his symptoms during and after service, and that he was diagnosed with DJD of the left knee based on similar symptoms experienced in-service, the evidence raises a reasonable doubt as to the initial onset of the Veteran's left knee condition. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection may be granted for any disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s left knee condition is related to his service. Entitlement to service connection for left knee condition, for substitution purposes, is granted. 2. Hypertension, to include as a result of exposure to herbicide agents The Appellant is seeking entitlement to service connection for the Veteran’s hypertension. The evidence of the record establishes that the Veteran was diagnosed with hypertension. Regarding an in-service injury or event, the Veteran had confirmed service in Vietnam, from September 1969 to September 1970. 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). Therefore, based on his Vietnam service, the Veteran is presumed to have been exposed to herbicide agents. Alternatively, the Appellant seeks entitlement to service connection on a secondary basis, alleging that the Veteran’s hypertension is caused by or aggravated by his service-connected diabetes mellitus. The Board is aware that hypertension is not among the diseases listed under 38 C.F.R. § 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regarding whether there is a nexus, the June 2016 VA examiner opined that it was less likely than not that the Veteran’s hypertension was incurred in or caused by his service. The examiner stated that the Veteran’s blood pressure was in the upper limits of normal upon service entrance. The examiner noted that a blood pressure reading in 1968 after an epistaxis episode was 140/90, which was normal for the times. The separation examination showed that Veteran’s blood pressure was within normal limits. The examiner concluded that there was no evidence to diagnose or treat the Veteran for hypertension while on active duty. In December 2019, the VA examiner opined that it was less likely than not that the Veteran’s hypertension was due to his service. The examiner indicated that the Veteran had essential hypertension. Risk factors for the condition included age, genetics, and dietary factors. The examiner stated that there was no kidney disease related to diabetes mellitus that would have caused or aggravated the hypertension. In November 2020, the VA clinician opined that it was less likely than not that the Veteran’s hypertension was related to his active service, to include herbicide agent exposure. The clinician noted the Veteran’s examinations in service showing his blood pressure readings indicated that he was probably normotensive. The clinician noted that the earliest record showing treatment of hypertension was in August 1983, 12 years after separation from service. The clinician also opined that there was no record showing that the Veteran was determined to have directly sprayed herbicides or have elevated levels of TCDD or other dioxins. The clinician noted that hypertension was moved to the sufficient evidence of an association with herbicide agent exposure. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association. The clinician noted that the association of elevated blood levels of TCDD, the active dioxin in Agent Orange, is felt to be responsible for the toxic effects of herbicides. The clinician provided more information regarding the prevalence of hypertension in Vietnam-deployed sprayers. As explained above, the Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange, during his service. The issue of this matter is not if the Veteran was exposed or sprayed herbicide agents. The issue was whether his conceded exposure to herbicide agents contributed in any way to his development of hypertension. 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"). The November 2020 examiner did take note of the sufficient association between exposure to herbicide agents and the development of hypertension. "Hypertension" refers to persistently high arterial blood pressure. For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The examiners noted some of the Veteran’s blood pressure readings in service that noted that his diastolic blood pressure was 90 mm. When considering the 2018 NAS finding with the other medical and lay evidence of the record, the Board finds that a reasonable doubt has arisen regarding the initial onset of the Veteran’s hypertension. The Board acknowledges that the evidence in this case is not explicitly clear in resolving the issue regarding the specific onset of the Veteran’s hypertension. Significant time has been used to develop the evidentiary record in this matter in order to resolve the uncertainties. However, those uncertainties have not been resolved. Considering what has been proffered in the opinions, taken with the available evidence of the record, there is enough competent evidence to raise a reasonable doubt regarding the onset of the Veteran’s hypertension. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established. As service connection is being granted on a direct basis, it is not necessary to considered entitlement on a secondary basis. In sum, the Board determines that the criteria for service connection have been met. Entitlement to service connection for hypertension, for substitution purposes, is granted. 3. Kidney disorder, to include as secondary to diabetes mellitus The Appellant is seeking entitlement to service connection for kidney disorder. The evidence of the record shows that the Veteran experienced renal dysfunction and was diagnosed with chronic kidney disease. It has been alleged that the Veteran’s kidney disorder was related to his diabetes mellitus. Regarding whether there is a nexus, in November 2020, the VA clinician opined that it was at least as likely as not that his kidney disease was due to his diabetes. The examiner also opined that it was less likely than not that the acute kidney injury was caused by or aggravated by his diabetes prior to his death. The clinician stated that the Veteran’s diabetes was not well controlled, and he was noted to have mild renal dysfunction. The clinician continued that about 25 percent of claimants with diabetes mellitus will have renal disease as a consequence of the condition. Nephropathy related to diabetes is due to damage to the tiny blood vessels of the glomeruli, which act as filters in the kidneys. The clinician stated that it was likely that the Veteran’s diabetes contributed to his stage II kidney disease. The clinician continued to explain why the acute kidney injury was not related to his diabetes. The Board notes that the clinician opined that the Veteran’s kidney disease was due to his diabetes and provided an explanation regarding that conclusion. The Veteran, now the Appellant, sought entitlement to compensation for a kidney condition, however assessed or diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a positive nexus opinion for supporting rationale has been provided, the Board finds that a nexus has been established between the Veteran’s kidney disease and his service-connected diabetes. The Board determines that the criteria for service connection have been met. Service connection for kidney condition, diagnosed as chronic kidney disease, for substitution purposes, is granted. REASONS FOR REMAND After a thorough review of the record, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Appellant’s remaining claims on appeal. 1. Entitlement to service connection for thyroid disorder, to include as secondary to diabetes mellitus, for substitution purposes, is remanded. It has been asserted that the Veteran developed a thyroid disorder secondary to his diabetes mellitus. In November 2020, the Board remanded the claim to obtain an adequate opinion that addresses whether the Veteran’s diabetes mellitus aggravated his thyroid disorder. In November 2020, the VA clinician opined that it was less likely than not that the Veteran’s thyroid condition was due to his service-connected diabetes mellitus. The clinician outlined the medical history of the Veteran’s goiter. The clinician stated that multinodular goiter can be due to iodine deficiency, genetics, family history, or have an unknown cause but diabetes mellitus is not a cause of goiter. The clinician stated that the goiter was not clinically significant and never progressed or required any treatment. There was no evidence that the goiter was caused by his diabetes. Regarding aggravation, the clinician provided the same rationale to support that the Veteran’s diabetes did not aggravate his goiter. In Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018), the Court emphasized that aggravation was independent of causation, and that the Board must ensure that medical examinations are adequate on that question and explain the bases for its conclusion regarding aggravation. The case was based on an examination report that considered causation and aggravation together. Accordingly, the Board will remand the claim in order to obtain another opinion with supporting rationale that specifically speak to the factor of aggravation, which is separate from causation. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus, to include on an extraschedular basis, is remanded. The Board remanded this claim two times in order for the AOJ to refer this claim to the Director of Compensation Service for extraschedular consideration. This referral still has not been completed. Therefore, the Board will again remand the claim, hopefully for the ultimate time, in order for the AOJ to comply with the prior Board’s remand directives and refer the claim for extraschedular consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Provide the Appellant an opportunity to identify any pertinent treatment records for the Veteran’s conditions (thyroid condition and diabetes mellitus). The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If the records cannot be obtained, inform the Appellant of the records that could not be obtained, including what efforts were made to obtain them. The Appellant should also be notified that she may submit any such records. All efforts should be recorded in the claims folder. Additionally, any outstanding VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Appellant should be notified of such. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion to address the nature and etiology of the Veteran's thyroid condition. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s thyroid condition was aggravated (i.e., worsened beyond the natural progress) by his service-connected diabetes mellitus, type II? If the examiner determines that the Veteran’s thyroid condition was aggravated by his diabetes, 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 then thyroid condition was 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. Again, the examiner is reminded that a supporting rationale to the opinion must specifically speak towards aggravation, not causation. 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. (Continued on the next page)   3. Forward this case to the Director of Compensation Service for consideration of the assignment of an extraschedular rating for the Veteran’s diabetes mellitus, type II. A full statement outlining the medical evidence, lay statements, and other relevant factors should be prepared. 4. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claims. If any benefit sought remains denied, furnish to the Appellant and her representative an appropriate supplemental statement of the case (SSOC). The Appellant and her representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. Roya Bahrami Acting 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.