Citation Nr: 21008261 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 15-40 772 DATE: February 12, 2021 ORDER Entitlement to service connection for diabetes mellitus type II as due to herbicide agent exposure is granted. Entitlement to service connection for sarcoidosis, claimed as due to exposure to herbicide agents, is granted. Entitlement to service connection for end stage kidney disease as secondary to service connected sarcoidosis is granted. REMANDED Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. FINDINGS OF FACT 1. The evidence of record supports a finding that the Veteran served in the Republic of Vietnam during the Vietnam era, and was diagnosed with diabetes mellitus type II prior to his death. 2. The Veteran’s sarcoidosis had its onset during his service or is related to his service. 3. The Veteran’s end-stage renal disease was caused or aggravated by his now service connected sarcoidosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e). 2. The criteria for entitlement to service connection for sarcoidosis have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for end-stage renal disease as secondary to service connected sarcoidosis have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1966 to November 1967, which includes verified service in the Republic of Vietnam, for which he was awarded the Vietnam Service Medal with one Bronze Star. See Form DD-214 (rec’d Apr. 9, 2012 ). This matter comes before the Board of Veterans’ Appeals (Board) on appeal of separate rating decisions dated August 2013 (as to the claims for service connection for impaired fasting glucose, kidney disease, tinnitus, sarcoidosis, and TDIU) and March 2014 (for hypertension and bilateral hearing loss). Separate Notices of Disagreement were received on August 2014 as to all these claims. Separate Statements of the Case (SOC’s) were issued in September 2015, and the Veteran perfected these appeals in November 2015 by submitting timely and valid VA Forms 9. Sadly, the Veteran passed away in August 2016. The appellant is his surviving spouse, who was properly recognized as the substitute claimant in July 2019. See Correspondence ( July 31, 2019 ). The appellant’s attorney filed a valid VA Form 21-22a in June 2020. The appellant, her son as a witness, and her attorney all testified before the undersigned Veterans Law Judge in November 2020. See Hearing Tr. (Nov. 16, 2020). A transcript of the hearing has been associated with the record. This appeal has been advanced on the Board’s docket on account of sufficient cause demonstrated by the appellant. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). See Motion to Advance on the Docket (Oct. 14, 2020). Service Connection Criteria 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 may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran who develops one of several enumerated conditions associated with herbicide agent exposure, to include ischemic heart disease—which, in turn, includes, but is not limited to, the following: acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus type II as due to herbicide agent exposure is granted. In short, the Board grants the Veteran’s claim (via the appellant as substitute claimant) for diabetes on the basis that exposure is presumed as due to exposure to herbicide agents during verified service in the Republic of Vietnam. This represents a full grant of the sought benefit on appeal; therefore, the Board is not required to discuss alternative theories of entitlement to service connection. As to the other claims, the Board ultimately decides that remands are required, for reasons to be discussed in relevant parts below. The Board is in receipt of the Veteran’s Form DD Form 214. It evinces the Vietnam Service Medal with one Bronze Star, and his service is wholly within the prescribed period specified with 38 C.F.R. § 3.307(a)(6)(iii). As a result, the Veteran is presumed to have been exposed to herbicide agents. With respect to a presence of a disability of diabetes mellitus type II during the Veteran’s lifetime, the evidence of record suggests that the Veteran was diagnosed with diabetes no later than July 2012. See VA Medical Records ( July 2, 2012 ) (rec’d Mar. 31, 2014). To the extent that a VA examination dated July 16, 2013 indicates that the Veteran has no such diagnosis, see cf. VA Exam ( July 16, 2013 ), at Question No. 7, the Board now resolves reasonable doubt in the Veteran’s favor to conclude that this diagnosis did apply. Diabetes mellitus type II is specifically listed within 38 C.F.R. § 3.309(e). The Board accordingly finds that, under the provisions of 38 C.F.R. § 3.309(e), service connection for diabetes mellitus type II (originally claimed as “impaired fasting glucose”) may be presumed. The benefit sought on appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to service connection for sarcoidosis, claimed as due to exposure to herbicide agents, is granted. 3. Entitlement to service connection for end stage kidney disease as secondary to service connected sarcoidosis is granted. The appellant alleges that the Veteran’s sarcoidosis had its onset during service or his related to his in-service exposure to herbicide agents. In addition, the appellant alleges that the Veteran’s end-stage renal disease was caused or aggravated by the Veteran’s sarcoidosis. The Board grants both claims herein. An undated opinion from Dr. G.B., a private physician, was received by the Board in January 2021. The physician indicated that he was board-certified in internal medicine and pulmonary diseases, that he had cared for between 100 and 1,000 patients with sarcoidosis and that he had reviewed the Veteran's military service records and treatment records. The physician opined that it was more likely than not that the Veteran developed pulmonary sarcoidosis during active military service in Vietnam while exposed to Agent Orange. The provider reasoned that there was no evidence for any pulmonary disease prior to the Veteran's service entrance, that the Veteran was no longer able to participate in competitive basketball at his previous level of performance after service, and that a medical evaluation in 1970 prior to employment at an electric company showed white spots on the Veteran's lungs. The physician noted that eventually computed tomography (CT) imaging of the chest in approximately 2011 demonstrated a ventilatory impairment consistent with sarcoidosis and the level of incapacity reported by the appellant. The physician further noted that sarcoidosis is an idiopathic disease which means the etiology is not known for certain. However, the physician further opined that in the circumstances of the Veteran, the cause of the Veteran's systemic sarcoidosis was more likely than not due to environmental exposures during service in Vietnam. The Board finds this opinion highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record. With regards to end stage renal disease, Dr. G.B. further opined that the Veteran had end stage renal disease, that the medical imaging of his kidneys was consistent with the presence of renal sarcoidosis, that the renal biopsy dated in March 2010 demonstrates chronic kidney disease of unknown etiology and that it cannot be determined whether sarcoidosis was the primary etiology or not. The physician stated that even if sarcoidosis was not the primary etiology of end stage renal disease, it was more likely than not that sarcoidosis was an aggravating factor in the development of end stage renal disease and continued to be an aggravating factor in the worsening of his end stage renal disease. The physician opined that end stage renal disease was likely due to a combination of acute and chronic insults, that it was more likely than not that the presence of renal sarcoidosis make it less likely that the Veteran would recover from acute renal insults that he would have in the absence of renal sarcoidosis. The physician further opined that it was more likely than not that any consequences of chronic renal insults other than renal sarcoidosis would have been more severe than would have occurred in the absence of renal sarcoidosis. The Board finds this opinion highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Id. There is no contrary opinion of record. In summary, the Board finds that service connection is warranted as the evidence regarding the relationship between the Veteran's sarcoidosis and his service is at least in relative equipoise and the relationship between the Veteran’s end stage renal disease and the now service connected sarcoidosis is at least in equipoise. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection for sarcoidosis and service connection for end stage renal disease as secondary to service connected sarcoidosis are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 1. Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents, is remanded. The Board notes that a previous VA examination for kidney disease merely concluded that because there was no apparent diagnosis of diabetes, there could be no service connection. See VA Examination ( July 13, 2013 ). The Board is unable to locate a similar examination as pertaining to the claimed hypertension, even though there is evidence of a diagnosis. See McLendon, supra; VA Medical Records ( July 2, 2012 ) (rec’d Mar. 31, 2014). On remand, a VA opinion to determine the etiology of the Veteran’s hypertension should be obtained. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. By way of background, the most recent audiogram of record appears to be from a May 2013 VA examination, at which time the Veteran’s claims for service connection for bilateral hearing loss and tinnitus were each denied. See VA Exam (May 4, 2013) (rec’d June 11, 2013 ). In sum and substance, the Veteran’s hearing loss in the left ear only did not constitute a hearing loss disability for VA purposes at that time, see 38 C.F.R. § 3.385; for the right ear and tinnitus, a negative nexus was rendered because of a lack of significant hearing threshold shifts during service. Without more explanation as to why this, in and of itself, is clinically significant to preclude a finding of entitlement to service connection, the opinion lacks adequate rationale. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Notwithstanding the above, the Board finds that a remand is required to associate certain records with the Veteran’s claims file. The appellant, her son, and her attorney all appeared to testify that a September 2013 audio examination (at which time the Veteran was fitted for hearing aids) should be associated with the record. See Hearing Tr. at Page 19. Meanwhile, the Veteran appears to have presented before an otolaryngologist who deemed it appropriate to administer a hearing aid trial. See VA Medical Record ( Oct. 28, 2013 ). Ultimately, to the extent that any audiograms may exist after May 2013 but during the Veteran’s lifetime, same may substantiate a diagnosis of hearing loss in the left ear for VA purposes. If other audiograms exist, then the remaining claims for hearing loss and tinnitus would be intertwined with this remand for records, see Harris, supra; regardless, an addendum opinion is required to adequately address the importance of a perceived lack of threshold shifts. See Barr, supra. 4. Entitlement to a rating of a TDIU is remanded. By way of background, the Veteran was only service connected for posttraumatic stress disorder at 50 percent disabling during his life. This would normally not satisfy the schedular criteria for a TDIU under 38 C.F.R. § 4.16. However, the appellant, attorney, and son provided testimony attributing unemployability with the Veteran’s dialysis requirements and resulting exhaustion. See generally Hearing Tr. at Pages 20-5. The Board has granted the claims for service connection for diabetes, sarcoidosis and end stage renal disease herein that will affect schedular eligibility, and it appears that the Veteran’s claim for a TDIU nevertheless requires further development. See VA Form 21-8940 (rec’d Jan. 19, 2021); Hearing Tr. at 21-5 (detailing the Veteran’s status as a self-employed attorney with drastically reduced hours). The hearing testimony suggests that the Veteran was self-employed as an attorney, that he worked part-time during the appeal period and that he eventually wound down his practice due to his illnesses. However, the amount of income the Veteran earned during the appeal period is not clear from the record. Such information is necessary to determine whether the Veteran was gainfully employed. On remand, such evidence should be obtained. The matters are REMANDED for the following action: The appellant and her attorney should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal, including but not limited to all of the Veteran’s audiograms postdating May 2013. After obtaining any necessary authorization from them, all outstanding records should be obtained. 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 appellant and her attorney, and afford them an opportunity to submit any copies in their 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 appellant 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. Request that the appellant complete a new VA Form 21-8940 to provide the Veteran’s complete income history for each year beginning in 2011. 3. Following the receipt of outstanding records, obtain a VA etiology opinion from an appropriate medical professional to ascertain the nature and etiology of the Veteran’s claimed hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must review the claims file and note that review in the examination report. The examiner must provide an opinion regarding the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that a hypertension had its onset during service, or is otherwise related to service, to include his presumed exposure to herbicide agents? (B) Is it at least as likely as not (50 percent or greater probability) that a hypertension was caused or aggravated by his service connected end stage renal disease? 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. 4. Following the receipt of outstanding records, obtain a VA etiology opinion from an appropriate medical professional to ascertain the nature and etiology of the Veteran’s claimed bilateral hearing loss and tinnitus. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must review the claims file and note that review in the examination report. The examiner is asked to furnish an opinion with respect to the following questions: Is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and/or tinnitus had its onset during any period of service or is otherwise related to such period of service? The examiner should specifically consider the Veteran’s reports of hazardous noise exposure from a rocket attack in Vietnam. The examiner should specifically address the significance, if any, of in-service threshold shifts. 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 Michael B. Engle, 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.