Citation Nr: 22011968 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-43 712 DATE: March 2, 2022 ORDER Entitlement to service connection for a kidney disability, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for gastrointestinal disability, as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. The Veteran's kidney disability is not attributable to his active military service, including to herbicide agent exposure therein, and was not manifest within one year of his separation from service. 2. The Veteran's gastrointestinal disability has not been caused or aggravated by his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a kidney disability, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for gastrointestinal disability, as secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from July 1968 to July 1970. He had service in the Republic of Vietnam. In March 208, the Board remanded the appeal for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection for a kidney disability, to include as due to herbicide agent exposure. The Veteran asserts that he developed kidney cancer following exposure to Agent Orange during service. Alternatively, the Veteran has also claimed that his kidney disease is related to glucose-6-phosphate dehydrogenase deficiency that occurred in 1969 while on active duty. Veterans who served in Vietnam between January 9, 1962 and May 7, 1975, are presumed exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38C.F.R. §3.307 (a)(6)(iii). As discussed previously, the Board is bound by the favorable finding of the Veteran's presumed exposure to herbicide agents. Thus, the Veteran meets the in-service disease or injury requirement. Kidney cancer is not a disease on the list of those presumed service-connected in Veterans exposed to herbicide agents. 38 U.S.C. § 1116 (a)(1); 38C.F.R. §3.309 (e). However, the absence of diseases on the list of those presumed service-connected in Veterans exposed to herbicide agents does not preclude a Veteran from alleging that the non-presumptive disease with which he has been diagnosed is related to herbicide agent exposure. 38 U.S.C. § 1113 (b); 38C.F.R. §3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The Veteran has a current diagnosis of renal cell carcinoma as evidenced by the June 2014 VA examination. The June 2014 VA examiner found that the G6PD is an inherited diagnosis. It would lead to sensitivity to certain medications (such as malaria prevention medications), but would not be the cause of renal cell carcinoma or be caused by Agent Orange exposure, making it less likely as not that his renal cell carcinoma was caused by G6PD. An addendum opinion completed in November 2019 indicated that the Veteran's diagnosis of renal cell cancer was less likely than not related to Agent Orange exposure during his time in service. Renal Cell Carcinoma is the most common type of kidney cancer in adults. Risk factors for the development of this condition include tobacco smoking, obesity, hypertension, and long term use of non-steroidal anti-inflammatory (NSAID) drugs. The Veteran exhibited each of these lifestyle factors. He had more than a 30 pack year history of tobacco smoking. His BMI was consistent with his being overweight for several years prior to his diagnosis. The Veteran has a history of chronic hypertension, requiring three anti-hypertensives for blood pressure control. He also has a history of chronic NSAID use, for treatment of his musculoskeletal pain issues. Therefore, each of these factors likely contributed, to a degree, to his development of renal cell carcinoma. There is no evidence to substantiate a relationship between Agent orange exposure and the development of renal cell carcinoma. Although Agent Orange exposure has been conceded, the evidence of record does not show the Veteran's kidney cancer was caused by exposure to herbicide agent. Moreover, there is no evidence it is related to service at all and more likely related to risk factors developed post-service. Moreover, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Available treatment records show the Veteran was not diagnosed with kidney cancer until August 2013, which is decades after his separation from service and decades outside of the applicable presumptive period. The Veteran is not competent to provide a diagnosis in this case or determine that any symptoms were manifestations of kidney disease, as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that his kidney disease was due to the many risk factors he has exhibited throughout his life, to include smoking, being overweight and NSAID overuse. As such, service connection for kidney disease is not warranted. 2. Entitlement to service connection for gastrointestinal disability, as due to PTSD. The Veteran contends that he has a gastrointestinal disability that is due to his service. Specifically, he reports that it was caused or aggravated by his PTSD symptoms. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran's gastrointestinal disability is secondary to his PTSD. The Vetearn has a diagnosis of gastroesophageal reflux disease (GERD). The Board concludes that, while the Veteran has current GERD, the evidence of record persuasively weighs against finding that it is proximately due to or the result of, or aggravated beyond its natural progression by PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The November 2019 VA examiner noted a diagnosis of GERD that had an onset in 2010. The examiner opined that his condition was less likely than not proximately due to or the result of his PTSD. There is no evidence that PTSD causes GERD but stress (symptom of PTSD) may exacerbate the gastrointestinal symptoms. The Veteran underwent a EGD in April 2019, which demonstrated normal esophagus, mild gastropathy, normal duodenum. The examiner noted that those results did not indicate his GERD had been aggravated beyond its natural progression by his PTSD. As such, a nexus could not be established. Although the Vetearn believes his GERD is proximately due to or aggravated beyond its natural progression by symptoms related to his PTSD, the evidence shows otherwise. Moreover, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and pathology. Therefore, it is outside the competence of the Veteran's experience in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2019 VA opinion. Therefore, service connection for GERD is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a prostate disability, to include as due to herbicide agent exposure, is remanded. The November 2019 VA examiner confirmed the Veteran did not have a diagnosis of prostate cancer, and instead diagnosed prostatitis. The examiner further found that prostatitis is not identified as any of the conditions that are presumed due to Agent Orange exposure. However, the examiner failed to provide an opinion discussing whether the Veteran's prostatitis was directly caused by exposure to an herbicide agent during service. As such, a remand is appropriate. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, is remanded. The most recent VA medical opinions were conducted in September 2021 and the examiner indicated that there was no pathological evidence found to support hypertension being incurred or caused by exposure to herbicide agents during his service in Vietnam. The National Academy of Science upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association in Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. Consequently, the Board finds that a remand is necessary to obtain additional VA medical opinion. Evidence of record directly links the development of the Veteran's erectile dysfunction to his hypertension. As such, the two are intertwined and service connection for erectile dysfunction should also be remanded. 4. Entitlement to a TDIU is remanded. The matter of a TDIU is inextricably intertwined with the remaining claims being remanded. Moreover, a review of the record reveals there is no VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability on file. Such form provides information relevant to entitlement to TDIU. On remand, the AOJ must request that the Veteran complete this form and then adjudicate the issue of entitlement to TDIU. The matters are REMANDED for the following action: 1. Request that the Veteran complete a formal TDIU application form (VA Form 21-8940.) 2. Obtain a VA addendum opinion from a qualified clinician regarding the etiology of the Veteran's prostatitis. Specifically, the examiner is asked to determine whether it was caused or aggravated by his exposure to herbicide agents in service. The examiner should recognize that although prostatitis is not a presumptive condition associated with herbicide agent exposure, it can still be found to have caused such a condition on a facts-found basis. 3. Obtain a VA addendum opinion from a qualified clinician regarding the etiology of the Veteran's hypertension. The examiner is asked to provide additional rationale for the previous medical opinion rendered. (Continued on the next page) Specifically, he or she is asked to clarify the reasoning why they do not believe the Veteran's hypertension is at least as likely as not related to his herbicide agent exposure. In doing so, the examiner must address the NAS update which states "the sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. J. Smith Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.