Citation Nr: 21027444 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-01 689A DATE: May 5, 2021 ORDER Service connection for non-degenerative arthritis of joints, to include as due to exposure to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder, is denied. REMANDED Service connection for diabetes mellitus, type II (diabetes), to include as due to exposure to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder, is remanded. Service connection for degenerative arthritis of the cervical spine to include as due to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder, is remanded. Service connection for degenerative arthritis of the left knee to include as due to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has had non-degenerative arthritis at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for non-degenerative arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1975 until his honorable discharge in July 1977, including service at Camp Lejeune, North Carolina. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 decision by the Louisville, Kentucky, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which, among other claims, denied service connection for "arthritis" and "diabetes." For reasons that will be explained later, the Board has recharacterized the Veteran's claims on appeal. In July 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In a February 2019 order, the Board remanded each of the Veteran's claims for service connection to the RO for further development, to include obtaining outstanding medical records and VA examinations and medical opinions. The RO accomplished those directives. In a November 2020 order, the Board again remanded each of the Veteran's claims to the RO for further development, to include obtaining new VA examinations and opinions as to each of the Veteran's claims. The RO accomplished these directives. Nevertheless, the Board finds that remand is necessary to obtain an addendum opinion as to the Veteran's claims for service connection for diabetes and degenerative arthritis. Stegall v. West, 11 Vet. App. 268, 271 (1998). Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. The Board acknowledges that service connection may be also granted on theories of presumptive service connection and secondary service connection, theories which are applicable in this case. See 38 C.F.R. §§ 3.307, 3.309(f) (presumptive service connection due to active military service at Camp Lejeune); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (presumptive service connection due to chronic diseases); 38 C.F.R. § 3.310(b) (secondary service connection). But for reasons that will be discussed, the evidence of record indicates the Veteran did not have non-degenerative arthritis approximate to the filing of his claim or during the pendency of the claim. As a "current disability" is a necessary element of any of the foregoing theories for service connection, the lack of a current disability is dispositive of the Veteran's claim. Therefore, an analysis under each theory of service connection is unnecessary. 1. Service connection for non-degenerative arthritis of joints, to include as due to exposure to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder. An essential element of all service connection claims is the presence of a "current disability." The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has thoroughly reviewed all of the medical records associated with the Veteran's claims file and is unable to locate a medical diagnosis of non-degenerative arthritis (inflammatory arthritis), to include diagnoses such as gout, psoriatic arthritis, and rheumatoid arthritis, approximate to the filing of his claim or during the pendency of his claim. The Board's conclusion is supported by the December 2020 VA examiner's conclusion that the Veteran does not have a current diagnosis of non-degenerative arthritis. During the examination, the Veteran reported he did not experience inflammatory or non-degenerative arthritis. The Board finds the VA examiner was competent to exam and diagnose the Veteran. The Veteran was also competent to report if he was diagnosed inflammatory or non-degenerative arthritis previously. The VA examiner and the Veteran are each credible and their statements are probative. Therefore, the Board finds the Veteran does not have a current disability of non-degenerative arthritis. Accordingly, service connection for non-degenerative arthritis is not warranted. REMANDED ISSUES 1. Service connection for diabetes mellitus, type II, to include as due to exposure to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder is remanded. The Veteran has asserted that due his service-connected bilateral knee disability, lumbar spine disability, and depressive disorder he has been unable to engage in general fitness routines. Consequently, he says has gained weight to the point of obesity. Thus, he seeks service connection for his diabetes as secondary to these service-connected disabilities. See Walsh v. Wilkie, 32 Vet. App. 300 (2020) (obesity may serve as an intermediary step for service connection). The Board has twice requested an opinion from a VA examiner as to the Veteran's theory of obesity as a basis for service connection. Most recently, the December 2020 VA examiner opined that the Veteran's diabetes was less likely than not caused by or aggravated beyond its natural progression by his right knee disability, left knee disability, lumbar spine disability, or psychiatric disorder. After considering the Veteran's statements and medical history, the examiner concluded that the Veteran's obesity was diagnosed after his 2006 diabetes diagnosis, thus making it less likely that his current service-connected disabilities led to his obesity and subsequently caused or aggravated his diabetes. The Board finds the examiner overlooked critical medical information as to the Veteran's obesity within the Veteran's claims file, which consequently caused her to rely on an inaccurate factual premise. Thus, her opinion and rational have no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). The examiner did not offer any factual basis for her conclusion that the Veteran was diagnosed as obese after his diabetes diagnosis. At most, in her prior February 2020 opinion, she stated the Veteran weighed 253 pounds and had a BMI (body mass index) of 36 in November 2011; and in November 2019, he weighed 222 pounds with a BMI of 34. But she did not provide a conclusion that this constituted obesity. In addition, she did not address relevant medical evidence prior to November 2011. On review of the Veteran's medical records, the Board has located an October 21, 1997, medical record in which a VA physician determined that the Veteran was 50 pounds overweight. The VA physician provided a provisional diagnosis of "exogenous obesity." In an August 1999 VA medical certificate, the Veteran was documented as weighing 204 pounds. In multiple 2003 VA medical notes, the Veteran was documented as weighing between 193 and 199 pounds. In a June 2004 VA primary care note, the Veteran was documented as weighing 187 pounds. In an August 2005 VA primary care note, the Veteran was documented as weighing 214 pounds. At that time, he reported his right knee pain limited his physical activity and that he had been gaining weight. During a November 2006 nutrition consult, the Veteran was documented as weighing 208 pounds with a BMI of 32. Based on the foregoing medical information, the Veteran was provisionally diagnosed with obesity prior to his 2006 diabetes diagnosis. Between 1997 and 2006, the Veteran's weight fluctuated. But, significantly, in August 2005, the Veteran reported increased weight gain, as demonstrated by his weight of 214 pounds as compared to his prior weight of 187 pounds, and he attributed it to his inability to exercise due to his right knee disability. This information was not addressed by the VA examiner and it contradicts her factual premise for her opinion, that the Veteran was diagnosed with diabetes first and then his obesity followed. Furthermore, the Board notes that a November 2003 VA Optometry Consult reported that the Veteran had "borderline" diabetes at that time. Accordingly, the Board finds a remand is necessary to obtain an addendum opinion as to whether the Veteran's obesity is an intermediary step for service connection for his diabetes. 2. Service connection for degenerative arthritis of the cervical spine to include as due to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder is remanded. As part of the Board's November 2020 remand order, it directed the RO to obtain a VA examination and medical opinion as to the Veteran's claim for service connection for degenerative arthritis. The Veteran testified at his Board hearing that he suffered pain in his neck, back, and legs, which was consistent with his prior statements in various correspondences with VA. The RO obtained a VA examination and medical opinion as to arthritis associated with the Veteran's cervical spine (i.e., neck). The examiner opined the Veteran's cervical spine arthritis was less likely than not related to contaminated water at Camp Lejeune, military service, and was less likely than not related to his service-connected bilateral knee disability and lumbar spine disability (which she grouped as "arthritis") was less likely than not related to his obesity. First, the examiner's opinion is unaccompanied by any rationale linking her opinions with the facts and data of record. Second, the Board directed the examiner to provide an opinion as to whether the Veteran's arthritis was caused by or aggravated by his right knee disability, left knee disability, lumbar spine disability, or psychiatric disability. Neither opinion was provided. Instead, the examiner opined they were not "related." This is not the same as an opinion as to legally defined terms of "causation" or "aggravation." See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Finally, the examiner was under the mistaken belief that the Veteran was service connected for arthritis in his left knee. That is not correct. According to the Veteran's most recent codesheet, he is service connected for "left knee strain" under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5260. See July 7, 2020, Rating Decision (granting service connection for left knee strain, not left knee arthritis). Thus, the opinion has no probative value as it relied on inaccurate facts. Reonal, 5 Vet. App. at 461. Accordingly, remand is necessary to obtain an addendum opinion as to the etiology of the Veteran's cervical spine arthritis. 3. Service connection for degenerative arthritis of the left knee to include as due to contaminated water at Camp Lejeune; and/or as secondary to service-connected bilateral knee disability, lumbar spine disability, or depressive disorder is remanded. As just discussed, the VA examiner was under the mistaken belief that the Veteran was service connected for arthritis in his left knee. As such, the VA examiner determined that an opinion as to the etiology of the Veteran's left knee arthritis was not warranted. Because the Veteran is not service connected for left knee arthritis, remand is necessary to obtain an addendum opinion as to the etiology of the Veteran's left knee arthritis. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the December 2020 VA examiner, or another appropriately qualified clinician if the examiner is unavailable, to provide an opinion as to the onset and etiology of the Veteran's diabetes mellitus, type II. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed diabetes mellitus, type II, was caused by (proximately due to or as the result of) his service-connected (i) right knee disability, (ii) left knee disability, (iii) lumbar spine disability, or (iv) psychiatric disorder? (b.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed diabetes mellitus, type II, was aggravated by his service-connected (i) right knee disability, (ii) left knee disability, (iii) lumbar spine disability, or (iv) psychiatric disorder? The examiner is advised "aggravation" means an increase in the severity of the underlying disability beyond its natural progression. (c.) Whether the Veteran's service-connected (i) right knee disability, (ii) left knee disability, (iii) lumbar spine disability, or (iv) psychiatric disorder caused or aggravated the Veteran's obesity? If so, whether obesity was a substantial factor in causing his diabetes mellitus, type II? If so, whether his diabetes mellitus, type II, would not have occurred but for his obesity? In rending his or her opinion on whether the Veteran's obesity was a factor in causing or aggravating his diabetes mellitus, type II, the examiner should consider and, if deemed relevant, address the following information in addition to any other evidence the examiner deems relevant: (a.) The October 21, 1997, medical record in which a VA physician determined that the Veteran was 50 pounds overweight and provisionally diagnosed the Veteran with "exogenous obesity." (b.) The August 5, 1999, VA medical certificate that documented the Veteran as weighing 204 pounds. (c.) May 5, August 20, and November 20, 2003, VA medical notes that documented the Veteran weighing between 193 and 199 pounds. (d.) The November 21, 2003, VA optometry note that stated the Veteran had borderline diabetes mellitus. (e.) The June 7, 2004, VA primary care note that documented the Veteran as weighing 187 pounds. (f.) The October 22, 2004, private medical record from Dr. C.M., documenting the Veteran's reported increase in urination frequency and weight loss. (g.) The August 16, 2005, VA primary care note that documented the Veteran as weighing 214 pounds. And at which time he reported his right knee pain limited his physical activity and that he had been gaining weight. (h.) The November 6, 2006, VA nutrition consult that documented the Veteran as weighing 208 pounds with a BMI of 32. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his diabetes mellitus, type II, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the assertion that the Veteran's service-connected disabilities led to his diabetes mellitus, type II. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. In addition, if the examiner relies on Body Mass Index (BMI) calculations, the examiner should explain how the calculations were made, and what medical treatises, formulas, and standards were used in reaching the calculations and overall determinations. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional 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 the particular question(s). 3. After any additional records are associated with the claims file, obtain an addendum opinion from the December 2020 VA examiner, or another appropriately qualified clinician if the examiner is unavailable, to provide an opinion as to the onset and etiology of the Veteran's degenerative arthritis of his: (1) cervical spine and (2) left knee. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's degenerative arthritis of his: (1) cervical spine and (2) left knee had their respective onsets in or are otherwise etiologically related to an in-service event, injury, or disease, to include contaminated water at Camp Lejeune, North Carolina. (The Board realizes arthritis is not a condition subject to presumptive service connection with exposure to contaminated water at Camp Lejeune. Instead, the Board is requesting an opinion on whether the Veteran's exposure to contaminated water at Camp Lejeune is causally linked to his arthritis under a theory of direct service connection.) (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's degenerative arthritis of his: (1) cervical spine and (2) left knee were respectively caused by (proximately due to or as the result of) his service-connected (i) right knee disability, (ii) left knee disability, (iii) lumbar spine disability, or (iv) psychiatric disability. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's degenerative arthritis of his: (1) cervical spine and (2) left knee were respectively aggravated by his service-connected (i) right knee disability, (ii) left knee disability, (iii) lumbar spine disability, or (iv) psychiatric disability. The examiner is advised "aggravation" means an increase in the severity of the underlying disability beyond its natural progression. (d.) Whether the Veteran's service-connected (i) right knee disability, (ii) left knee disability, (iii) lumbar spine disability, or (iv) psychiatric disorder caused or aggravated the Veteran's obesity? If so, whether obesity was a substantial factor in causing his degenerative arthritis of the cervical spine or left knee? If so, whether his degenerative arthritis of the cervical spine or left knee would not have occurred but for his obesity? The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of degenerative arthritis of the cervical spine or left knee in service or the assertion that the Veteran's service-connected disabilities or obesity led to his current degenerative arthritis of the cervical spine or left knee. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional 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 the particular question(s). 4. The RO should ensure the examiner has specifically addressed each of the Board's remand directives before readjudicating the claims, to include reliance on accurate facts. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.