Citation Nr: 21030649 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-15 424A DATE: May 19, 2021 ORDER Entitlement to service connection for arthritis of the bilateral lower extremities, for substitution purposes, is denied. Entitlement to service connection for bilateral cataracts, for substitution purposes, is denied. REMANDED Entitlement to service connection for a respiratory disability, to include asthma, chronic bronchitis, and chronic obstructive pulmonary disease (COPD), for substitution purposes, is remanded. Entitlement to service connection for chronic kidney disease, for substitution purposes, is remanded. Entitlement to a disability rating in excess of 20 percent prior to April 6, 2011, and in excess of 40 percent thereafter, for diabetes mellitus, for substitution purposes, is remanded. FINDINGS OF FACT 1. The Veteran did not have a lower extremity arthritis disability that began during active service, or was otherwise related to an in-service event, injury, or disease, to include herbicide agent exposure. 2. The evidence is against a finding that the Veteran's cataracts were secondary to service-connected diabetes, and were not otherwise related to an in-service event, injury, or disease, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral lower extremity arthritis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for cataracts have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1960 to July 1969, to include service in the Republic of Vietnam. His awards and decorations include the Purple Heart, the republic of Vietnam Gallantry Cross, and the Combat Medical Badge, among others. The Veteran died in October 2016 and the Appellant is his surviving spouse. She has been substituted in this appeal. See Board decision, dated January 19, 2019; 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1000 (a) (1)-(5), 3.1010(c), (d).. This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2011 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in January 2019 where they, were remanded for additional development, and they now return to the Board for further adjudication. The Board notes that the additional service connection claim for basal cell carcinoma was also remanded in January 2019, which was granted by the RO in a subsequent rating decision in October 2020. As the award of service connection represents a full grant of the benefit sought, this claim is no longer on appeal. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, a Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As the Veteran's military personnel records confirm his service in the Republic of Vietnam from December 1967 to July 1969, herbicide agent exposure is conceded. 1. Arthritis of the lower extremities. Prior to his death, the Veteran sought service connection for arthritis in his bilateral lower extremities. During the appeal period, he was diagnosed with degenerative joint disease in the hips and feet. The evidence is absent arthritis in the Veteran's knees and ankles, to include any evidence of pain resulting in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). Thus, the remaining question is whether any of the Veteran's diagnosed arthritis disabilities prior to his death were related to service. The Veteran did not assert, nor does the evidence show, that he suffered any injuries to his lower extremities in combat. See 38 U.S.C. § 1154(b). Service treatment records (STRs) show no complaints, diagnosis, or treatment related to a lower extremity arthritis disability. As the Veteran reported other ailments during service, and joint problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems associated with arthritis during service the Board would expect that he would have reported these problems to medical professionals. During the July 1969 separation examination, evaluation of the feet and lower extremities was normal. In a corresponding report of medical history, the Veteran specifically denied having had arthritis or rheumatism, lameness, "trick" or locked knee, foot trouble, or bone, joint, or other deformity. If lower extremity pain was present during service, the Board would expect the Veteran would have responded "yes" when asked if he had such symptoms at separation because a reasonable person would have interpreted the question to include symptoms of arthritis. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having lower extremity pain. A lower extremity arthritis disability is not shown by medical evidence until VA examinations in November 2011 diagnostic testing and subsequent VA examinations documenting foot and hip degenerative joint disease, decades after the Veteran's separation from service. As arthritis in the lower extremities is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of arthritis cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied joint pain of any kind. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran first presented for a number of VA examinations for his arthritis claim in November 2011, at which time he was diagnosed with his hip and foot arthritis. No etiological opinion was provided, however. As such the claim was remanded by the Board for an addendum opinion in January 2019, which was obtained in August 2020. After review of the record, the examiner opined that it was less likely than not that any arthritis in the Veteran's lower extremity was due to service, to include herbicide agent exposure. Rather, the Veteran's arthritis was due to aging and repetitive use over time. In support of this conclusion, the examiner explained that there is no evidence or biologic plausibility that herbicide agent exposure would cause mild degenerative joint disease decades roughly four decades after service. While the record reflects the Veteran complained of right foot pain in 1995, the examiner noted that x-rays were suggestive of gout which the medical record is otherwise silent for. Foot pain was not again noted until 2010, with foot arthritis not documented until his subsequent VA examination where there was no functional loss despite the Veteran's report of pain. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Bilateral cataracts. The Veteran did not assert, nor does the evidence show, that he suffered any injuries to his eyes in combat. See 38 U.S.C. § 1154(b). The Veteran's STRs show no complaints, diagnosis, or treatment related to any eye disability other than a refractive error and amblyopia (lazy eye). For purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for such conditions even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Here, however, prior to his death the Veteran was seeking service connection specifically for diagnosed cataracts. During the July 1969 separation examination and corresponding report of medical history, evaluation of the eyes was normal other than the above congenital conditions. To the extent the Veteran asserts a continuity of symptomatology of his cataracts beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical examination at separation from service which was negative for cataracts. The Board finds the report of medical examination at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran asserts, however, that his cataracts are either due to exposure to herbicide agents in service, or as secondary to his service-connected diabetes mellitus. For the reasons that follow, the Board finds that service connection is not warranted. As noted in an April 2015 VA eye conditions examination, a cataract disability is not shown by medical evidence until approximately 2011, many years after the Veteran's separation from service. Of note, an April 2970 VA eye examination was negative for cataracts. Additionally, a VA diabetes mellitus examination in May 2010 noted that there were no findings of secondary complications related to the eye at that time, and a subsequent VA examination for several disability claims in November 2011 were negative for cataracts. The April 2015 examination noted that the Veteran had a gradual diminution of vision from both eyes, especially the left eye, over the previous 3 years. The examiner opined that the Veteran's cataracts were less likely than not proximately caused by or aggravated beyond their natural progression by diabetes because they are "independent of the underlying diabetes," noting they were most likely "age related." As the Board noted in its previous remand, the examiner provided no supporting data or an explanation for how the above opinion. Additionally, no opinion was provided as to the Veteran's assertion prior to his death that herbicide agent exposure was related to his cataracts. As such, a VA examiner's addendum opinion was obtained in August 2020. The examiner opined that it was less likely than not that the Veteran's cataracts were caused or aggravated by herbicide agent exposure, explaining that there was lack of evidence in the medical records and in the medical literature to support the cataract progression was caused by herbicide exposure. Rather, due to the Veteran's age and description of cataracts as being nuclear, it was instead at least as likely as not that the cataracts are related to normal age progression instead of service or service-connected diabetes. The Board finds the above opinions, as a whole, to be highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. As to both claims being denied above, the Board has considered the Appellant's assertions, as well as the Veteran's statements prior to his death, that his claimed disabilities are related to service. As the Appellant is not shown to have medical education or experience, she is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., joint pain and breathing difficulties; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Appellant is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, her lay assertions do not constitute evidence upon which service connection can be granted. While the Board acknowledges the Veteran's Military Occupational Specialty as a Medical Specialist and his receipt of the Combat Medical Badge in service, neither the Veteran nor the Appellant has demonstrated the knowledge and expertise necessary to opine as to the etiology of these claimed disabilities. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the remaining claims must again be remanded for additional development. 1. Asthma with bronchitis. The Board notes that the Veteran was diagnosed with asthma, chronic bronchitis, and COPD at a VA respiratory conditions examination in March 2013. As such, the Board has broadly construed the claim to include any respiratory disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's STRs show no complaints, diagnosis, or treatment related to a respiratory disability other than one complaint of a cough in August 1961 with no further complaints. During his separation examination, evaluation of the chest and lungs was normal, and in a corresponding report of medical history, the Veteran specifically denied having had asthma, shortness of breath, pain or pressure in the chest, or chronic cough. A VA examination in February 1970, less than one year after service separation, examination of the chest and lungs was normal. A chronic respiratory disability is not shown by medical evidence until the end of 1979, just prior to his original service connection claim in February 1980. Medical treatment records submitted at the time from December 1979 note the Veteran reported an onset of wheezing associated with cough, and productive of foamy sputum six and a half weeks prior (i.e., late October or early November 1979). Findings compatible with intrinsic an extrinsic asthma were indicated. At the time, the Veteran associated the onset of his symptoms with possible dust exposure from a new forced air electric heating system in his home. Based on the above, the Veteran's claim, originally just for asthma, was denied in October 1980. After a petition to reopen is claim, the denials were continued by the RO in May 2013 and again in May 2015, based in part on the opinion of an April 2013 VA examiner who opined that the Veteran's asthma with bronchitis were less likely than not related his one complaint of cough in August 1961. As the examiner did not address the Veteran's herbicide agent exposure argument, the Board remanded the claim in January 2019 for an additional examination and opinion, which was provided in August 2020. While the examiner provided a negative opinion that the Veteran's asthma with bronchitis was less likely than not related to herbicide agent exposure after a delay of 10 years between service and its onset, the examiner did note that there was a "biological plausibility" between herbicide agent exposure and COPD. No further opinion or discussion of the relationship between this Veteran's COPD and herbicide agent exposure was provided, however. Thus, an addendum opinion is again necessary. 2. Service connection for chronic kidney disease. As the Board noted in its previous remand, the issue of entitlement to service connection for chronic kidney disease was denied in a May 2015 rating decision. While the Veteran filed a timely notice of disagreement, a Statement of the Case (SOC) had not yet been issued. Thus, the Board remanded the claim for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Review of the file since the Board's remand reveals that an SOC has yet to be issued. 3. A disability rating in excess of 20 percent prior to April 6, 2011, and in excess of 40 percent thereafter, for diabetes mellitus. The Veteran was granted entitlement to service connection for diabetes mellitus in a February 2011 rating decision, with a 20 percent disability rating awarded as of April 5, 2009. Subsequent to the Board's last remand, the Veteran's disability rating was increased to 40 percent effective April 6, 2011 in an October 2020 rating decision. A Supplemental Statement of the Case (SSOC) was also issued, denying a rating in excess of 40 percent. The Board notes, however, that the RO awarded the Veteran's 40 percent rating effective the date of an April 6, 2011 statement that the RO interpreted as an increased rating claim. However, the rating decision that awarded service connection for diabetes mellitus and an initial 20 percent rating was issued in February 2011, and the Veteran's April 2011 statement should have instead been interpreted as an informal, yet timely, notice of disagreement with the initial 20 percent rating assigned. As such, either the October 2020 rating decision or SSOC should have also addressed the period on appeal prior to April 6, 2011. Therefore, remand is necessary for the RO to consider the entire period on appeal. The matters are therefore REMANDED for the following action: 1. Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current respiratory disability, to include COPD, onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 2. Send the Appellant and her representative a Statement of the Case that addresses the issue of service connection for chronic kidney disease. If the Appellant perfects an appeal, the issue should be returned to the Board for further appellate consideration. (Continued on the next page) 3. Readjudicate of the issue of entitlement to a disability rating in excess of 20 percent prior to April 6, 2011, and in excess of 40 percent thereafter, for diabetes mellitus. The AOJ must consider the entire initial rating period on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.