Citation Nr: 22018124 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 13-13 606 DATE: March 28, 2022 ORDER Entitlement to service connection for nephrolithiasis, to include as due to herbicide exposure, is denied. Entitlement to service connection for neutropenia, to include as due to herbicide exposure, is denied. REMANDED Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities prior to May 1, 2014, is remanded. FINDINGS OF FACT 1. The Veteran's nephrolithiasis was not related to his military service, to include as due to herbicide exposure. 2. The Veteran's neutropenia was not related to his military service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for nephrolithiasis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for neutropenia 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 had active military service from June 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2021 and was remanded for further development. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appeared at a December 2016 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Sadly, the Veteran passed away in January 2018. The Veteran's surviving spouse has been substituted in as the Appellant. 1. Entitlement to service connection for nephrolithiasis, to include as due to herbicide exposure, The Appellant contends that the Veteran's nephrolithiasis is related to his military service. Specifically, the Appellant asserts that the Veteran's condition is related to herbicide exposure he experienced in service. It is also argued that his service treatment records show the onset of kidney problems during service. 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). The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis of nephrolithiasis, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of nephrolithiasis began during service or is otherwise related to an in-service injury, event, or disease. The Board has noted that the Veteran's service treatment records show that he was seen in March 1974 for questionable AFB (acid fast baccili) on a urine screen. He was scheduled for an IVP. Another record dated in March 1971 noted vague back pain and burning on urination. Another service treatment record dated in March 1971 shows the Veteran was being treated for a kidney infection for four days but still had elevated white blood cell count. Medication was switched to ampicillin. A March 22, 1971 record noted that the Veteran had persistent pyuria and an IVP study states as follows: No abnormal calcifications are identified. The kidneys are of normal size, shape and alignment. There is persisting irregularity of the upper pole infundibulum on the right as well as a mildly deformed middle pole calyx. Ureters and bladder appear within normal limits. Conclusion - Deformed infundibulum and calyx which may be secondary to renal Inflammatory disease. A record dated March 23, 1971 notes a negative urinalysis that day. The doctor stated that he doubted TB. VA treatment records show the Veteran was not diagnosed with nephrolithiasis until 2005, over three decades after his separation from service. While the Appellant is competent to report the Veteran having experienced symptoms since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of nephrolithiasis. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Pursuant to the Board's recent April 2021 remand, several addendum opinions regarding the etiology of the Veteran's nephrolithiasis were obtained. The June 2021 examiner opined that the Veteran's VA claims folder was reviewed. The examiner reports that the Veteran was noted to have kidney stones in 2011 and in 2018 the Veteran had a CT scan that showed bilateral non-obstructing renal calculi. The examiner states that treatment records dated October 2007, 2016, and 2018 noted that the Veteran was being treated for recurrent kidney stones. Ultimately, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that there is no medical literature that would indicate that a kidney infection with upper pole infundibulum as well as a mildly deformed middle pole calyx affecting the right kidney would lead to bilateral kidney stones over 30 years later. The examiner commented that in addition, there is no service treatment record suggesting that the Veteran suffered from kidney stones during service. The examiner therefore stated the claimed kidney stones were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Subsequently an August 2021 addendum opinion was obtained by a different examiner. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no evidence of nephrolithiasis while in service. The examiner reported that the Veteran was treated for a urinary tract infection which evidently cleared with proper treatment. The examiner stated that an IVP performed while in service on March 19, 29171 was negative for renal stones, thereby definitively ruling out renal stones. The examiner also reported that the Veteran was not diagnosed with nephrolithiasis until in or around 2005, per the Veteran. The examiner stated that it has been variously reported as 2010. The examiner reported that nonetheless, this is a minimum of three decades post-service. The examiner stated that therefore, there is no evidence of renal nephrolithiasis while in service. The examiner reported that the March 1971 IVP study indicated that the Veteran had a persisting irregularity of the upper pole infundibulum on the right kidney as well as a mildly deformed middle pole calyx. However, the examiner stated that any variation in those structures would be developmental and unrelated to service. The examiner reported that there is no evidence suggesting aggravation of what may be a normal variant of the Veteran's kidney. The examiner stated that though not necessarily proven, the Veteran may have been at a slightly higher risk for developing pyelonephritis due to these developmental variations, nonetheless, any developmental abnormality or variation was not aggravated beyond its natural course. The examiner commented that a single urinary tract infection, successfully treated, does not represent aggravation of the developmental anomaly, either temporary or permanent. The examiner stated that the developmental anomalies may have increased the Veteran's risk for developing nephrolithiasis arising in 2005 (or 2010). The examiner opined that therefore, it is less likely than not that the Veteran's nephrolithiasis occurring three decades post-services is due to or incurred in service, including the single, treated urinary tract infection. The examiner notes that definitively, there were no stones on the IVP in1971. The examiner comments that, had the Veteran had his first stone in 1971, it is almost a certainty the Veteran would have had more stones prior to 2005 or 2010. Additionally, the October 2021 addendum opinion stated that the Veteran had a postmortem diagnosis of acute promyelocytic leukemia for which he was never treated. The intra-ventricular hemorrhage was attributed to the acute leukemia. Neither renal stones nor acute promyelocytic leukemia have been attributed to remote herbicide exposure. A review of the current, widely accepted, peer-reviewed literature and medical treaties were noted to be reviewed and the examiner stated that no articles returned establishing agent orange as a cause of either nephrolithiasis or neutropenia. The examiner's opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, the several VA opinions of record establish that the Veteran's nephrolithiasis is not at least as likely as not related to an in-service injury, event, or disease, including herbicide exposure. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran, prior to his death, and the Appellant believes the Veteran's nephrolithiasis is related to an in-service injury, event, or disease. The Veteran and Appellant in this case are 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. Therefore, it is outside the competence of the Veteran and Appellant in this case because the record does not show that they had or have the medical training or credentials 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 VA addendum opinions. Therefore, entitlement to service connection for nephrolithiasis is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the persuasive wieght of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for neutropenia, to include as due to herbicide exposure, is remanded. As noted above, this matter was previously before the Board in April 2021 and was remanded to obtain an addendum opinion regarding the etiology of the Veteran's neutropenia. The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis of neutropenia, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of nephrolithiasis began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with neutropenia until 2005, decades after his separation from service. While the Appellant is competent to report the Veteran having experienced symptoms since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of neutropenia. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Pursuant to the Board's recent April 2021 remand, several addendum opinions regarding the etiology of the Veteran's neutropenia were obtained. At the VA Hematologic and Lymphatic Conditions, including Leukemia examination dated June 2021, the examiner stated that the Veteran was noted to have neutropenia in 2005 and this was worked up with bone marrow biopsy which the claims files states was negative. The examiner reports that he also had hepatitis C (not service connected) which was thought to have caused the neutropenia. The examiner stated that there are no records showing infection related due to neutropenia. The examiner stated that, in addition to this, the Veteran on autopsy was diagnosed with acute promyelocytic leukemia. The examiner reported that he was never treated for this. The examiner states that he passed away from large subdural hematoma and intraventricular hemorrhage secondary to acute leukemia. The examiner opined that the Veteran's neutropenia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner states that the Veteran's neutropenia was secondary to thalassemia and hepatitis C based on treatment record dated November 26, 2008. The examiner repeated that the Veteran had a bone marrow biopsy which was negative. The examiner states that it is a well-known studied complication of thalassemia and hepatitis C that neutropenia would develop. The examiner reported that there is no procedure, exposure, or complication noted in service that would cause neutropenia many years after service, especially in the setting of hepatitis C and thalassemia. The examiner therefore opined that the Veteran's neutropenia was less likely than not (less than 50percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Additionally, an August 2021 addendum opinion was obtained by a different examiner. The examiner similarly opined that the Veteran's neutropenia was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no evidence of neutropenia while in service. The examiner reports that the Veteran's white [cell] count at the time of the urinary tract infection dated March 16, 1971, was normal. The examiner also commented that the Veteran was noted to have neutropenia in 2005. The examiner stated that it would have been evident well before 2005 had its nexus been in service. The examiner commented that this is almost a certainty. The examiner opined that therefore, it is less likely than not the Veteran's neutropenia had its nexus in service or is due to events in service. In October 2021, the same examiner considered the veteran's assertions and lay testimony with respect to symptoms and came to the same conclusion, as well as addressing the likely predisposition due to the Veteran's developmental anomaly, which was not aggravated beyond its natural course due to service. There examiner stated that there is no evidence of neutropenia while in service and the documented white count in service was within normal limits. The examiner reported that the etiology is not specifically determined but the bone marrow biopsy was negative and it was thought to be due to hepatitis C. Additionally, the examiner noted that the veteran had a postmortem diagnosis of acute promyelocytic leukemia for which he was never treated. The intra-ventricular hemorrhage was attributed to the acute leukemia. Neither renal stones nor acute promyelocytic leukemia have been attributed to remote herbicide exposure. A review of the current, widely accepted, peer-reviewed literature and medical treaties were noted to be reviewed and the examiner stated that no articles returned establishing agent orange as a cause of either nephrolithiasis or neutropenia. The examiner stated that the Veteran may have been predisposed to developing stones by his anomalous collecting system, but they are unrelated to the isolated urinary tract infection during service. The negative IVP confirmed the absence of stones during that episode. Records dated December 2005, September 2007, July 2008, August 2008, November 2008 were previously reviewed and considered in the original opinion. They do confirm stones and neutropenia, but this does not suggest a relationship to events in service. The veteran did not have evidence of an immunologic condition while in service and the white count available in the records was normal. Additionally, the examiner stated that there is no evidence of an immunologic or hematologic condition while in service. It is conceded that the Veteran had stones arising in or around 2005. The veteran's symptoms in service or documented as a UTI with no evidence of stones. Though the Veteran reported symptoms with continuity since service, the medical evidence does not support the claim. The examiner additionally explained and opined that herbicide exposure plays no role in renal stones and have not been implicated in acute promyelocytic leukemia. Any acute leukemia arising due to herbicide exposure almost certainly would have manifested more proximately to service. In summary, the examiner opined that it is less likely than not that the veteran's nephrolithiasis and neutropenia had their nexus in service, including herbicide exposure. It is less likely than not that the veteran's renal stones and/or in-service UTI represent aggravation of the veteran's anomalous urinary collecting system. Additionally, it is more likely than not that the veteran's neutropenia arose secondary to chronic hepatitis C or other unidentified etiology post-service. The examiner's opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, the several VA opinions of record establish that the Veteran's neutropenia is not at least as likely as not related to an in-service injury, event, or disease, including herbicide exposure. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran, prior to his death, and the Appellant believes the Veteran's neutropenia is related to an in-service injury, event, or disease. The Veteran and Appellant in this case are 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. Therefore, it is outside the competence of the Veteran and Appellant in this case because the record does not show that they had or have the medical training or credentials 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 VA addendum opinions. Therefore, entitlement to service connection for neutropenia is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the persuasive weight of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities prior to May 1, 2014 is remanded. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The Veteran had the following disabilities that are service connected: depression with unspecified anxiety (rated 50 percent, from September 20, 2013); thoracic degenerative arthritis (rated 20 percent, from June 5, 2009); right lower extremity radiculopathy associated with thoracic degenerative arthritis (rated 10 percent, from May 1, 2014); and, left lower extremity radiculopathy associated with thoracic degenerative arthritis (rated as 10 percent, from May 1, 2014). Based on the forgoing, the Veteran did not meet the percentage standards set forth in § 4.16(a) prior to May 1, 2014. Therefore, the Board may not consider the Appellant's claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, to determine whether there is a reasonable possibility that prior to May 1, 2014, the Veteran was unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In the June 2014 and January 2015 applications for increased comepnsation based on unemployability, the Veteran indicated that he could not work due to symptomatology associated with service-connected disabilities, including those that were granted prior to May 1, 2014. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration prior to May 1, 2014. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration prior to May 1, 2014. 2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.