Citation Nr: 21044383 Decision Date: 07/21/21 Archive Date: 07/21/21 DOCKET NO. 15-29 846 DATE: July 21, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability, is denied. Entitlement to service connection for hypertension, to include as secondary to service-connected hypothyroidism, is denied. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right knee disability is related to service or is caused or aggravated by a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran's hypertension is related to service or is caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability, to include as secondary to a service-connected left knee disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for hypertension, to include as secondary to service-connected hypothyroidism, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to November 1996. He died in February 2017. The Appellant is his surviving spouse. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's appeal was remanded in March 2019 for further development. Specifically, the Board directed that the RO obtain new VA medical opinions because the opinions of record did not address the issue of aggravation as it relates to each of the service connection claims. The Board remanded the claims again in July 2020 to obtain addendum VA medical opinions because it found the previous medical opinions inadequate. The Board finds there has been substantial compliance only with respect to the Appellant's claims of entitlement to service connection for a right knee disability and hypertension. The Board will consider those claims on the merits below. Because there has not been substantial compliance as to the claim of entitlement to service connection for diabetes, the Board must remand this claim again as discussed in the REMAND below. Service Connection 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability Prior to his death, the Veteran believed that the onset of his right knee disability was due to his service-connected left knee disability. He reported at his January 2013 VA examination that he noticed some instability and intermittent pain in the right knee over the last few years. He attributed this to shifting his weight to the right knee to compensate for the pain he experienced in his left knee. The Board has reviewed the evidence of record carefully and finds that the preponderance of the evidence is against the claim for service connection for a right knee disability. As to evidence of a current disability, a January 2013 VA examination report shows that the Veteran was diagnosed with degenerative joint disease of the right knee. Therefore, the first element of a service-connection claim is met. The Veteran was not diagnosed with a right knee disability during service and the Appellant does not contend he was diagnosed with a right knee disability in service. Thus, the second element of an in-service right knee disability is not met. Service connection is in effect for hypothyroidism; thus, the second element of a secondary service-connection claim is met. Regarding evidence of a nexus between the current right knee disability and the service-connected left knee disability, the Board finds that the preponderance of the evidence is against finding such a nexus. The Veteran was afforded a VA examination in January 2013 and, in April 2020, an addendum medical opinion was obtained. The Board previously found those examiner's opinions inadequate. In August 2020, another VA examiner provided a negative medical opinion. The examiner concluded that it is not as least as likely as not that the Veteran's right knee disability had its onset in service or is the result of an incident in service. The examiner found no objective evidence of a right knee disability in the Veteran's service treatment records. Additionally, the examiner concluded that it is not at least as likely as not that the right knee disability was caused or aggravated by his left knee disability, to include as due to an altered gait, because the right knee disability is degenerative arthritis which is not related or caused by contralateral knee condition or other joint condition. Furthermore, the examiner found there was no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). In order for this type of gait to have impact on the opposite or uninjured leg, the examiner stated that it is likely that the abnormal gait or limp would need to be present over an extended period of time (i.e. years). A temporary abnormality in gait, i.e. a limp, over a relatively short period of time of weeks or months is unlikely to have any effect on the opposite leg. The use of a cast, cane, and crutches is also unlikely to have any major impact on the stress borne by the uninjured limb. Increased body weight (obesity) does have a detrimental effect on both lower extremities and magnifies all of the previously described risk factors. The Board affords great probative weight to the opinion of the August 2020 VA examiner who found that the right knee disability was less likely than not related to service or to the service-connected left knee disability. The examiner reviewed the Veteran's claims file and provided an opinion supported by a well-reasoned rationale, which showed he had looked in medical literature to see if there was validity to the Veteran's claim that a left knee disability had caused or aggravated the right knee disability. In other words, this opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran, prior to his death, and the Appellant, after his death, are competent to state that the Veteran has been told that he has a diagnosis of degenerative joint disease of the right knee. To the extent that the Veteran or the Appellant asserts that the current right knee disability is caused or aggravated by his service-connected left knee disability or otherwise is related to service, such assertion is afforded no probative value. Neither the Veteran nor the Appellant has the necessary training and expertise to render a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Furthermore, the Board finds that there is no competent positive opinion to outweigh the August 2020 VA examiner's opinion. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. In summary, the Board finds that service connection for a right knee disability, to include as secondary to a service-connected left knee disability, is not warranted. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected hypothyroidism During his January 2013 VA examination, the Veteran reported that he was treated for hypertension beginning in 1998 and started on antihypertensive medication in 2009. In the Veteran's VA Form 9, he stated that his hypertension began long after his hypothyroidism diagnosis and is secondary to his hyperthyroidism. The Board has reviewed the evidence of record carefully and finds that the preponderance of the evidence is against the claim for service connection for hypertension, including as due to service-connected hyperthyroidism. As to evidence of a current disability, a February 2020 VA examination report shows that the Veteran was diagnosed with hypertension. Therefore, the first element of a service connection claim is met. The Veteran was not diagnosed with hypertension during service and the Appellant does not contend he was diagnosed with hypertension in service. Nevertheless, service connection is in effect for hypothyroidism. Thus, the second element of a secondary service connection claim is met. As to evidence of a nexus between hypertension and a service-connected disability, the Board finds that the preponderance of the evidence is against finding such a nexus. For instance, in January 2002, the Veteran reported that he was taking medication for hypothyroidism but, in the past, he was told to discontinue medication he was taking for hypertension. He reported that he has been well without any problems. In January 2003, a VA medical provider noted that the Veteran had essential hypertension controlled with diet and exercise. In 2004, the Veteran was prescribed hypertension medication but he was taken off of it in 2005. Throughout the remaining period on appeal, the Veteran's hypertension was controlled with diet and exercise only. Furthermore, the claims file shows that he did not have a diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Thus, the Board finds that the preponderance of the evidence shows that the Veteran's hypertension was not aggravated to the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. A VA medical opinion was obtained in January 2013 and March 2020. Because the Board previously found these opinions to be inadequate, they were not reviewed or relied upon in adjudicating the Veteran's claim. A new medical opinion was obtained in August 2020. The examiner concluded that it is not as least as likely as not that the Veteran's hypertension had its onset in service or otherwise is the result of an incident in service. The examiner found no objective evidence of history, diagnosis, and/or treatment for hypertension within the service treatment records. Additionally, the examiner stated that it is not as least as likely as not that the Veteran's hypertension had its onset in service or otherwise is the result of the service-connected hypothyroidism because there is no objective evidence of worsening of hypertension related to hypothyroidism documented within the medical records. The Board affords great probative weight to the opinion of the August 2020 VA examiner who found that the Veteran's hypertension was less likely than not related to service or to the service-connected hypothyroidism. The examiner reviewed the Veteran's claims file and provided an opinion supported by a well-reasoned rationale which showed he had looked in medical literature to see if there was validity to the Veteran's claim that a hypertension had caused or aggravated the hypothyroidism. See Stefl, 21 Vet. App. at 124. While the examiner specifically addressed aggravation, the Board finds that this opinion is distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the Court found that the examiner's opinion that it was "more likely than not that the Veteran's alcohol abuse was related to factors other than the Veteran's post-traumatic stress disorder" did not rule out the possibility that the Veteran's service-connected PTSD aggravated his alcohol abuse to some degree. Id. In contrast, here, the Board finds that the examiner's rationale clearly demonstrates the lack of a cause-and-effect relationship between the Veteran's service-connected disability and hypertension. This indication within the examiner's rationale, unlike that of the examiner in El-Amin, ruled out the possibility that the service-connected disability may aggravate to some degree the nonservice-connected hypertension. Accordingly, the preponderance of the evidence is against a finding that hypertension was caused or aggravated by the Veteran's a service-connected disability. While the Veteran and the Appellant has attempted to establish a nexus through their own lay assertions that hypertension is secondary to a service-connected disability, they are not competent to offer opinions as to the etiology of hypertension. Hypertension requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. Therefore, the Veteran and the Appellant's lay opinions are not probative evidence. See Jandreau, 492 F. 3d at 1372. The Appellant's representative believes there is a casual relationship between the Veteran's hypertension and hypothyroidism. The representative cited an article from the Mayo Clinic entitled "Secondary Hypertension." A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999).; see also Sacks v. West, 11 Vet. App. 314 (1998). The medical article submitted by the Appellant's representative in this case was not accompanied by the opinion of any medical expert linking his disability to active service or to his service-connected hypothyroidism. Thus, this medical article is insufficient to establish the medical nexus opinion required for causation. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Moreover, the Board notes that the article admitted that "Secondary hypertension differs from the usual type of high blood pressure (primary hypertension or essential hypertension), which is often referred to simply as high blood pressure." The Board notes that the Veteran's claims file shows that the Veteran was diagnosed with essential hypertension. For all of these reasons, the Board finds that the article from the Mayo Clinic is not probative on the issue of whether hypertension is related to active service. There is no competent and probative evidence to weigh against the negative VA opinion and the preponderance of the evidence is against finding that a service-connected disability caused or aggravated the Veteran's hypertension. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for hypertension, to include as secondary to his service-connected hypothyroidism. In summary, the Board finds that service connection for hypertension, to include as secondary to service-connected hypothyroidism, is not warranted. REASONS FOR REMAND 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism The Veteran contends that he incurred diabetes mellitus during active service or, alternatively, his service-connected hypothyroidism caused or aggravated his diabetes mellitus. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Board notes that an addendum medical opinion was obtained in August 2020. The VA examiner opined that it is not at least as likely as not that the Veteran's diabetes mellitus was caused or aggravated by his service-connected hypothyroidism. The examiner stated that there is not enough information in current medical literature to objectively support that the Veteran's diabetes mellitus was caused or aggravated by his service-connected hypothyroidism. The Board finds the August 2020 VA medical opinion inadequate for two reasons: 1) it misstates the current medical literature as it pertains to the correlation between diabetes and thyroid disease; and 2) it does not address the specific evidence in the record. The Appellant's representative cited an article by VeryWellHealth that states, "It's not uncommon for someone to have both thyroid disease and diabetes. In fact, if you have type 1 diabetes, type 2 diabetes, insulin resistance, or metabolic syndrome, your risk of developing thyroid disease is increased. And thyroid disease increases your risk of developing metabolic syndrome or type 2 diabetes." The Veteran's claims file also contains evidence suggesting that his diabetes could be associated with his weight gain which is a direct result of his service-connected hypothyroidism. Additionally, the January 2013 VA examiner noted that "obesity can also lead to poor blood sugar control and the [Veteran's] BMI is elevated at 45." As there is evidence in the Veteran's claims file which suggests a possible association between the service-connected hyperthyroidism and his diabetes mellitus, the August 2020 examiner should have addressed this evidence in the medical opinion and should have provided a medical explanation for finding of no aggravation by the service-connected disability. As such, a remand is warranted for an addendum medical opinion. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the Appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. The matter is REMANDED for the following action: 1. Forward the claims file and a copy of this REMAND to an appropriate clinician for a medical opinion concerning the nature and etiology of the Veteran's diabetes mellitus. If possible, this opinion should be provided by a clinician other than the clinician who provided the August 2020 medical opinion. Because the Veteran is deceased, he should not be asked to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetes mellitus is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected hypothyroidism caused or aggravated his diabetes mellitus prior to his death. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided, then the clinician must explain why this is so. The clinician is advised that service connection is in effect for hypothyroidism. The clinician also is advised that, prior to his death, the Veteran asserted that his diabetes mellitus is related to active service or, alternatively, his service-connected hypothyroidism caused or aggravated his diabetes mellitus. The clinician finally is advised not to review or rely upon an August 2020 medical nexus opinion in preparing his or her own opinion. 2. Review the medical opinion, once obtained, and determine whether it substantially complies with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.