Citation Nr: 22017471 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-58 692 DATE: March 25, 2022 ISSUES 1. Entitlement to service connection for a kidney disorder, to include as due to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for a parathyroid disorder, to include as due to a kidney disorder. REMANDED Entitlement to service connection for a kidney disorder, to include as due to service-connected diabetes mellitus, type II is remanded. Entitlement to service connection for a parathyroid disorder, to include as due to a kidney disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1984 to January 1985 and from July 1986 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was denied entitlement to service connection for a parathyroid disorder, and service connection for a kidney disorder, in a rating decision from June 2015. She filed a Notice of Disagreement (NOD) in November 2015, and she was issued a statement of the case (SOC) in October 2017. The Veteran filed a timely VA Form 9 in November 2017, appealing those issues to the Board. In correspondence from April 2018, prior to notification of certification of those issues to the Board, the Veteran's Attorney timely withdrew from representation. See April 2018 Correspondence. The Board recognized that withdrawal in a Decision from June 2019. Following that, the Board remanded both issues for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board notes that when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the previous issue of entitlement to service connection for a kidney disorder, to now include as due to service-connected diabetes mellitus, type II. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a kidney disorder, to include as due to service-connected diabetes mellitus, type II is remanded. The Veteran has claimed that her kidney disorder is due to her active-duty service. Alternatively, the Board has expanded the Veteran's claim to include consideration of whether or not the kidney disorder may be proximately due to or aggravated by her service-connected diabetes mellitus, type II. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was given a VA examination in November 2017. The Veteran was seen in person, and her claims file was reviewed. The examiner noted a diagnosis of a chronic kidney disorder from September 2011, but then denied that the Veteran had a current diagnosis. They stated that "there is no pathology based on CMP and CBC results only reported symptoms by claimant." The examination report does not indicate that testing had been performed in relation to the claimed diagnosis. The examiner also noted that the Veteran takes Vitamin D and calcium supplements for a kidney disorder, without further explanation as to why this was necessary, absent a current diagnosis. Importantly, the examiner also explained that a chronic kidney disease can be due to diabetes mellitus as constant high blood glucose over time causes microvascular and neurovascular damages affecting the kidney tubules and internal structures thus causing kidney damages contributing to chronic kidney disease. Medically, there is a pathophysiological relationship between chronic diabetes and chronic kidney disease. The Board notes that the Veteran is currently service-connected for diabetes mellitus, type II. The Board then remanded the Veteran's claim in June 2019 to clarify whether or not the Veteran had a current diagnosis of a kidney disorder. The Veteran was to be given a VA examination, to confirm any current diagnosis, and then to provide an etiological opinion on a direct basis. The examiner was not asked by the Board to consider secondary service connection. That VA examination occurred in November 2019. The Veteran was seen in person, and her claims file was reviewed. As directed, the examiner acknowledged the November 2017 VA examination, as well as the September 2011 diagnosis of a kidney disorder. The examiner then confirmed that the Veteran had a current diagnosis of a chronic kidney disease. They noted her enlistment and separation records from her active-duty service, and then provided a negative etiological opinion on a direct basis. An opinion on secondary service connection was not rendered. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In consideration of the above, the Board finds that an addendum opinion is required before the claim on appeal can be adjudicated. The Veteran's claim was remanded in June 2019 because her current kidney diagnosis had not been confirmed, despite the examiner intimating that a link could be drawn between kidney disorders and diabetes mellitus in general. The Veteran's kidney disorder was later confirmed by the November 2019 examiner, but the opinion provided only addressed entitlement to service connection on a direct basis. The Board has however expanded the Veteran's claim to include consideration of service connection on a secondary basis. Because the Veteran's kidney disorder has not been confirmed, an opinion must be rendered as to whether it is at least as likely as not that her current kidney disorder is proximately due to, or aggravated by, her service-connected diabetes mellitus, type II. An opinion on possible aggravation is required. Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 2. Entitlement to service connection for a parathyroid disorder, to include as due to a kidney disorder is remanded. The Veteran has claimed that her parathyroid disorder may be proximately due to, or aggravated by, her kidney disorder. Hence, the claim for entitlement to service connection for a parathyroid disorder is inextricably intertwined with the claim of entitlement to service connection for a kidney disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As noted above however, the kidney disorder claim is being remanded herein. Therefore, the claim for entitlement to service connection for a parathyroid disorder must be also remanded pending the development and readjudication of the kidney disorder claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and ongoing VA treatment records. Associate such records with the claims file. 2. Forward the Veteran's claims file to the same VA examiner who conducted the November 2019 VA examination, or another suitable professional, to provide an addendum opinion as to the nature and etiology of the Veteran's chronic kidney disorder, as well as the parathyroid disorder. After a review of the Veteran's claims file, to include a copy of this remand, the examiner is asked to opine as to the following: (a.) whether it is at least as likely as not that the diagnosed chronic kidney disorder is either (1) proximately due to service-connected diabetes mellitus, type II, or (2) aggravated beyond its natural progression by service-connected diabetes mellitus, type II. The examiner is reminded than an opinion on possible aggravation is required. (b.) whether it is at least as likely as not that the diagnosed parathyroid disorder is either (1) proximately due to the chronic kidney disorder or (2) aggravated beyond its natural progression by chronic kidney disorder. Again, the examiner is reminded than an opinion on possible aggravation is required. Even if the examiner is unable to determine a baseline severity prior to the aggravation, the examiner is directed to the language of 38 C.F.R. § 3.310 (b) which indicates that the baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The examiner is reminded that the Veteran's chronic kidney disability, and her parathyroid disorder, have both been confirmed. They are asked to consider the September 2011 treatment records, in addition to the November 2017 and November 2019 VA examinations. The Veteran is currently service-connected for diabetes mellitus, type II. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After the development directed above has been completed, and after any additional development deemed necessary, readjudicate the issue on appeal. If a benefit sought on appeal is not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.