Citation Nr: 21009253 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-21 095 DATE: February 22, 2021 ORDER Service connection for hypertension is granted. Service connection for hepatitis C is denied. Service connection for a liver condition is denied. Service connection for a condition of the digestive system, claimed as Barrett’s esophagus, is denied. REMANDED The issues of (1) entitlement to service connection for a lumbar spine disability, and (2) entitlement to service connection for a renal condition are remanded for further development. FINDINGS OF FACT 1. The Veteran currently has hypertension and the evidence of record indicates that it was proximately caused by the Veteran’s service-connected diabetes mellitus. 2. The preponderance of the evidence indicates that the Veteran’s current hepatitis C was not caused by or otherwise related to service. Additionally, a preponderance of the evidence of record indicates that the Veteran’s current hepatitis C was not caused or aggravated by his service-connected acquired psychiatric disorder. 3. The preponderance of the evidence indicates that the Veteran’s current liver condition was not caused by or otherwise related to service, to include as due to exposure to herbicide agents. Additionally, a preponderance of the evidence of record indicates that the Veteran’s current liver condition was not caused or aggravated by his service-connected acquired psychiatric disorder or diabetes mellitus. 4. The preponderance of the evidence indicates that the Veteran’s current condition of the digestive system was not caused by or otherwise related to service, to include as due to exposure to herbicide agents. Additionally, a preponderance of the evidence of record indicates that the Veteran’s current condition of the digestive system was not caused or aggravated by his service-connected acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a liver condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a condition of the digestive system are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2009, April 2010, and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction of the Veteran’s claims file currently resides with the San Diego, California, RO. In September 2016, the Veteran testified before a decision review officer (DRO) at the Houston RO. A transcript of the hearing is of record. Thereafter, the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge in January 2018. A transcript of this hearing is also of record. In May 2018, the Board found that new and material evidence had been received to reopen the issues of service connection for diabetes mellitus and an acquired psychiatric disorder. Next, the Board granted service connection for a skin condition as well as diabetes mellitus. Lastly, it remanded the issues of service connection for a lumbar spine disability, bilateral hearing loss, hypertension, a liver condition, a gastrointestinal condition, hepatitis C, renal failure, and an acquired psychiatric disorder for further development. Then, in a November 2019 rating decision, a VA RO granted service connection for an acquired psychiatric disorder. The Board finds that this grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 19.20. Subsequently, in February 2020, the Board granted the Veteran’s claim for service connection for bilateral hearing loss. Additionally, the Board remanded the issues of service connection for a lumbar spine disability, hypertension, a liver condition, a condition of the digestive system, hepatitis C, and a renal condition for additional development. These issues were once again remanded by the Board in May 2020. The case has returned to the Board for appellate review. Service Connection Generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Additionally, service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To substantiate secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Hypertension As indicated above in the Conclusions of Law section, the Board finds that entitlement to service connection for hypertension is warranted in the instant case. Accordingly, the Board grants the Veteran’s claim. In support of this determination, the Board first finds that the Veteran currently has hypertension. See, e.g., October 2016 VA Primary Care Outpatient Progress Note (including an assessment of hypertension, controlled). Next, the Board notes that, as a result of its May 2018 decision, the Veteran is in receipt of service connection for diabetes mellitus. Lastly, regarding a nexus between hypertension and diabetes mellitus, the Board acknowledges a November 2020 opinion by a VA examiner. After physically examining the Veteran and reviewing his claims file, the examiner opined that it was at least as likely as not that the Veteran’s hypertension was proximately caused by or the result of his diabetes mellitus. In support of this conclusion, the November 2020 examiner referenced medical literature which explained that diabetes mellitus was a risk factor contributing to the emergence of hypertension as diabetes adversely affects the arteries, predisposing a person to atherosclerosis and a narrowing of the arteries. The examiner then noted that, in turn, atherosclerosis can cause high blood pressure. The Board finds the November 2020 examiner’s opinion to be adequate for adjudicative purposes as it was based on a consideration of the Veteran’s entire medical history, described the Veteran’s condition in detail, and included an explanatory rationale in support of its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As there are no other competent, adequate medical opinions of record, service connection for hypertension is granted on a secondary basis. See 38 C.F.R. § 3.310. In finding the November 2020 examiner’s opinion the only adequate medical opinion of record, the Board notes that, in the May 2020 and February 2020 remands, the Board found VA medical opinions from February 2020 and September 2019 to be inadequate for adjudicative purposes. The Board does not disturb these findings and, as such, finds the November 2020 opinion to be the only adequate opinion of record addressing the secondary theory of entitlement. 2. Hepatitis C Unlike the issue of hypertension, the Board finds that service connection for hepatitis C is not warranted in the instant case. Accordingly, the Board denies the Veteran’s claim. In support of this determination, the Board notes that the Veteran has contended that his hepatitis C was incurred by intravenous drug use in service or, alternatively, through exposure to vaccinations, medication, and foods while serving in foreign countries while on active duty. See January 2018 Board Hearing Tr. at 20; September 2016 DRO Hearing Tr. at 13-14; June 2013 Correspondence. In evaluating the Veteran’s claim, the evidence of record demonstrates that the Veteran has a current diagnosis of hepatitis C. See, e.g., December 2015 VA Primary Care Provider Follow-Up Note. Accordingly, the Board finds the first service connection requirement of a current disability to have been satisfied. Regarding the in-service incurrence requirement for service connection on a direct basis, the Board notes that the Veteran’s service treatment records (STRs) are silent for a diagnosis of or treatment received for hepatitis C. Additionally, while the Veteran may believe his hepatitis C was incurred in service, he has not demonstrated that he possesses sufficient medical knowledge and training to diagnose himself, provide etiological opinions, and attribute symptoms he experienced to specific disabilities. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Accordingly, the Board finds that the record does not support the Veteran’s contention that he contracted hepatitis C through in-service vaccinations or consuming medication and foods while on active duty service. In specific regard to the Veteran’s contention regarding intravenous drug use, 38 C.F.R. § 3.301 bars the granting of service connection when a disability was incurred or aggravated by in-service substance abuse. However, a veteran may receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran’s service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In the instant case, the possibility that the Veteran used illicit substances as a mechanism to self-medicate his now service-connected psychiatric disorder has been raised by the record. See June 2009 VA Form 21-4138. Specifically, in January 2009, a VA examiner remarked that the Veteran’s hepatitis C was related to the Veteran’s documented prior use of intravenous drugs. As such, substance abuse may support a grant of service connection on a secondary basis if such abuse was a method of the Veteran to attempt to self-medicate his psychiatric disorder. In order to address this possibility, the Veteran was provided a medical opinion in December 2020 by a VA psychologist. After reviewing the Veteran’s entire claims file, the psychologist opined that it was less likely than not that the Veteran’s documented substance and alcohol use was reflective of an attempt to self-medicate an acquired psychiatric disorder. In support of this opinion, the psychologist first noted that, in a June 1993 VA biophysical assessment, the Veteran stated that he began using marijuana and other substances in 9th grade. Additionally, the psychologist stated that the June 1993 assessment also indicated that the Veteran reported using heroin around age 15 or 16 and began using alcohol as a young teenager. The psychologist then noted that an October 1993 VA progress note recorded that the Veteran reported a long history of hallucinations, delusions, and thought insertions for which he used drugs for management purposes. But, the psychologist concluded that the Veteran’s drug and alcohol use started prior to service and not in service as a mechanism to self-medicate his now service-connected psychiatric disorder. The Board finds the December 2020 VA psychologist’s opinion regarding alcohol and substance abuse to be adequate for adjudicative purposes. See Stefl, supra. Specifically, the psychologist discussed the history of the Veteran’s substance use and detailed how it began prior to—and was not associated with—his service-connected psychiatric disorder. Accordingly, as there are no other adequate, competent medical opinions of record regarding this particular issue, the Board finds that the Veteran’s substance use was not a method to self-medicate his service-connected psychiatric disorder. As such, the Board may not grant service connection for hepatitis C as secondary to his psychiatric disorder. See 38 C.F.R. § 3.310. In denying the Veteran’s claim, the Board acknowledges that a November 2020 VA examiner provided a positive opinion regarding the Veteran’s use of substances and alcohol as a means to self-medicate his psychiatric disorder. However, the Board finds this opinion inadequate and of little probative value as the rationale supporting this opinion was generic, speculative, and did not directly address the Veteran’s medical history or circumstances. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Service Connection for a Liver Condition and a Condition of the Digestive System Similar to the issue of service connection for hepatitis C, the Board finds that service connection for a liver condition and a condition of the digestive system is not warranted in the instant case. Accordingly, the Board denies the Veteran’s claims. In support of this determination, the Board first notes that, during the claim period, the Veteran has received liver and digestive system diagnoses. Firstly, regarding the liver, he has been diagnosed with cirrhosis of the liver; echogenic liver consistent with infiltration by inflammation, fat or fibrosis; and fatty liver. See November 2020 VA Hepatitis, Cirrhosis, and Other Liver Conditions Examination Report; December 2018 VA Oncology Note; January 2018 VA Health Summary. Secondly, regarding his digestive system, the Veteran has received diagnoses of Barrett’s esophagus, gastroesophageal reflux disease (GERD), gastritis, and esophageal varices. See June 2019 Note from Rio Grande Gastroenterology Consultants; December 2018 VA Primary Care Note; November 2015 VA Nursing Outpatient Note; July 2012 VA History and Physical Note. Accordingly, for both claimed issues, the Board finds the first service-connection requirement of a current disability to be satisfied. Next, regarding the in-service incurrence requirement for service connection on a direct basis, the Board notes that an August 1970 STR associated with the Veteran’s claims file noted that the Veteran received treatment for acute alcohol gastritis. As explained above in the section addressing service connection for hepatitis C, 38 C.F.R. § 3.301 bars the granting of service connection when a disability was incurred or aggravated by in-service substance of alcohol abuse. Accordingly, the August 1970 STR cannot substantiate the in-service incurrence requirement for service connection on a direct basis. Related to the August 1970 STR, a January 2009 VA liver examination, a December 2018 VA oncology note, a June 2019 VA medical opinion, and a June 2019 treatment record from Rio Grande Gastroenterology Consultants discussed the Veteran’s liver and digestive system conditions in the context of the Veteran’s past alcohol and substance abuse. However, as concluded previously, the Veteran did not use alcohol or illicit substances as a mechanism to self-medicate his service-connected psychiatric disorder. As such, the Board concludes that the service connection for a liver condition and a condition of the digestive system is not warranted as secondary to his service-connected psychiatric disorder. See 38 C.F.R. § 3.310. Separate from theories of entitlement which involve the Veteran’s past use of alcohol and other substances, the Board notes that the Veteran has contended that he developed liver and digestive problems as a result of exposure to herbicide agents in service. See January 2018 Board Hearing Tr. at 3; June 2013 Correspondence. In May 2018, the Board found that the Veteran was exposed to herbicide agents during his active duty service in Thailand and, currently, the Board does not disturb this prior finding. Having acknowledged the Veteran’s in-service exposure to herbicides, the Board notes that 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) authorize service connection presumptively for certain identified disabilities on the basis of in-service exposure to herbicide agents. The above-identified diagnoses of echogenic liver consistent with infiltration by inflammation, fat or fibrosis; fatty liver; Barrett’s esophagus; GERD; gastritis; and esophageal varices do not appear in 38 C.F.R. § 3.309(e) as disabilities eligible for presumptive service connection due to herbicide exposure. Nevertheless, service connection for a liver condition and a condition of the digestive system may still be awarded as due to herbicide exposure on direct bases pursuant to 38 C.F.R. § 3.303(a). In addressing whether service connection for a liver condition or a condition of the digestive system may be awarded on direct bases as due to herbicide exposure, the Board first notes that the Veteran’s diagnosed liver conditions have been repeatedly attributed to hepatitis C and his past alcohol and substance abuse, and not herbicide agents. Specifically, in January 2009, a VA examiner opined that the Veteran’s liver cirrhosis was “directly related to [his] chronic, active hepatitis C and not to any other causative factors.” In support of this conclusion, the examiner cited that Veteran’s documented use of intravenous drugs, with addiction to heroin and cocaine 1990s. The examiner then explained that the Veteran likely contracted hepatitis C from intravenous drug use which then, in turn, caused cirrhosis of the liver. The Board finds this January 2009 opinion to be adequate for adjudicative purposes as it was based upon the Veteran’s medical history, the medical history as described by the examiner was reflective of that documented in the Veteran’s claims file, it contained a conclusion stated in clear terms, and it included an explanatory rationale. See Stefl, supra. Similar to the January 2009 opinion, in June 2019, a different VA examiner stated that it was a “common medically known fact” that hepatitis C was “caused by coming into contact with infectious fluids and secretions from someone else who is already infected” by the hepatitis C virus. The examiner then explained that hepatitis C can cause liver cirrhosis. The Board also finds the June 2019 opinion to be adequate for adjudicative purposes as it was based on a consideration of the Veteran’s entire medical history, described the Veteran’s liver condition and hepatitis C in detail, and included an explanatory rationale in support of its conclusion. Id. Accordingly, as there is no adequate, competent medical evidence of record linking the development of the Veteran’s current liver condition to his in-service herbicide exposure, the Board finds that service connection for a liver condition cannot be granted as related to herbicide exposure on a direct basis. See 38 C.F.R. § 3.303(a). Turing to the Veteran’s claim for service connection for a digestive system condition, the Board first notes that the same June 2019 VA examiner also provided an opinion as to whether the Veteran’s diagnosis of Barrett’s esophagus was caused by his in-service exposure to herbicide agents. Specifically, the June 2019 examiner opined that it was less likely as not that the Veteran’s Barrett’s esophagus was caused by the Veteran’s herbicide exposure. In support of this conclusion, the examiner referenced literature from the Mayo Clinic and stated that the known causes of Barrett’s esophagus include GERD, chronic heartburn with acid reflux, older age, certain genetic factors, being overweight, and current or past smoking history. The examiner then concluded by directly stating that exposure to herbicide agents, including Agent Orange, was not a medically accepted cause of Barrett’s esophagus. Thereafter, in February 2020, another VA medical professional addressed the possibility of an etiology between the Veteran’s current conditions of the digestive system and service. Firstly, the professional explained that the conditions of Barrett’s esophagus, GERD, esophagal varices, and gastritis—all of the Veteran’s above-identified current diagnoses—could be caused by excessive acid production in the stomach. The professional then noted that Barrett’s esophagus specifically is caused by GERD and the resulting esophageal erosion. The Board finds both the June 2019 and February 2020 medical opinions to be adequate for adjudicative purposes. In specific regard to the June 2019 opinion, the examiner directly addressed the Veteran’s herbicide contention and noted that there was no medical literature supporting a link between herbicide agents like Agent Orange and the development of Barrett’s esophagus. Additionally, the Board finds that the February 2020 opinion complimented the June 2019 opinion in that it discussed the main cause of all of the Veteran’s relevant diagnosed conditions: excessive acid production in the stomach. As there is no competent, adequate medical opinion of record linking the development of excessive acid production in the Veteran’s stomach to his in-service exposure to herbicide agents, the Board must deny service connection for a condition of the digestive system on the theory of direct entitlement as due to in-service herbicide exposure. See 38 C.F.R. § 3.303(a). Lastly, the Board acknowledges that the Veteran has also contended that his current liver condition was caused or aggravated by his service-connected diabetes mellitus. See January 2018 Board Hearing Tr. at 20. The above-referenced June 2019 examiner also addressed any linkage between the Veteran’s liver condition and his diabetes mellitus. Specifically, the June 2019 examiner opined that it was less likely as not that the Veteran’s liver cirrhosis was caused or aggravated by his diabetes mellitus. In support of these conclusions, the examiner referenced the Veteran’s substance and alcohol abuse history and noted there was no etiological relationship between diabetes and liver cirrhosis. With respect to this theory of service connection on a secondary basis, the Board finds the June 2019 VA examiner’s opinion to be adequate for adjudicative purposes as it supported its clear conclusion of no relationship between diabetes mellitus and cirrhosis with an explanatory rationale based upon a consideration of the Veteran’s complete medical history. See Stefl, supra. As such, the Board finds that entitlement to service connection for a liver condition as secondary to diabetes mellitus is also not warranted. See 38 C.F.R. § 3.310. In summation, the Board finds that service connection for a liver condition and a digestive condition cannot be granted (1) on a direct basis, to include as due to in-service herbicide exposure, or (2) as secondary to his service-connected acquired psychiatric disorder. Additionally, the Board finds that service connection for a liver condition cannot be granted as secondary to service-connected diabetes mellitus. Accordingly, the Board denies the Veteran’s claims. REASONS FOR REMAND 1. Service Connection for a Renal Condition The Board most recently remanded this issue in May 2020. Under 38 C.F.R. § 19.31(c), the Agency of Original Jurisdiction (AOJ) is to issue a supplemental statement of the case (SSOC) when, pursuant to a Board remand, it develops evidence or cures a procedural defect. The only exceptions to this requirement are if: (1) the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case (SOC) or SSOC, or (2) the Board specifies in the remand that a SSOC is not required. In the instant case, the AOJ developed additional evidence following the May 2020 Board remand. Then, in December 2020, a SSOC was issued. The December 2020 SSOC did not adjudicate the issue of entitlement to service connection for a renal condition. The May 2020 remand did not explicitly indicate that a SSOC was not required. Additionally, the underlying purpose of the remand was not to assemble records previously considered by the AOJ and properly discussed in a prior SOC or SSOC. Accordingly, 38 C.F.R. § 19.31(c) entitled the Veteran to a SSOC regarding the renal condition issue. As such, the Board remands the issue of entitlement to service connection for renal condition for the issuance of a SSOC to correct this due process error. 2. Service Connection for a Lumbar Spine Condition In May 2020, the Board remanded the issue of entitlement to service connection for a lumbar spine condition for a new VA medical opinion. In the remand directives, the Board requested that the VA medical professional providing the opinion directly address the Veteran’s contention that he currently experiences a lumbar spine disability as a result of the cumulative effects of his in-service duties as a supply specialist. Following the May 2020 remand, an additional VA medical opinion was provided in November 2020. However, the November 2020 opinion did not explicitly address the cumulative effects contention identified in the May 2020 remand directives. Accordingly, the Board finds that the AOJ has not substantially complied with the May 2020 remand directives. Accordingly, remand is warranted for the provision of an additional VA medical opinion. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate VA clinician for a medical opinion about the nature and etiology of the Veteran’s lumbar spine disability. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following whether it is at least as likely as not (50 percent probability or more) that the Veteran’s lumbar spine disability was incurred in, caused by, or related to service. In providing the requested opinion, please explicitly address the Veteran’s contention that he currently experiences a lumbar spine disability as a result of the cumulative effects of his in-service duties as a supply specialist. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, including VA treatment records from 1993 documenting that the Veteran experienced chronic back pain. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing any additional development deemed necessary, readjudicate the Veteran’s appeal regarding the issues of entitlement to service connection for a lumbar spine condition and a renal condition in light of any new evidence associated with the claims file. If the benefits sought remain denied, provide an additional SSOC to the Veteran and his representative and afford them an opportunity to respond. Then, return the appeal to the Board, if in order. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.