Citation Nr: A25035455 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 250103-505010 DATE: April 17, 2025 REMANDED Entitlement to service connection for chronic kidney disease stage 4 is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran had active service from August 1958 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on the appeal of a December 2024 supplemental claim rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. In September 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of claims for service connection for chronic kidney disease stage 4, diabetes mellitus type II, and hypertension, most recently addressed in an August 2024 rating decision. In December 2024, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the December 2024 AOJ supplemental claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims for service connection for chronic kidney disease stage 4, diabetes mellitus type II, and hypertension, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board recognizes the Court's decision in Williams v. McDonough, requiring the Board to afford the Veteran the opportunity to modify his docket election in the absence of a waiver of this right. 37 Vet. App. 305, 310 (2024). The Board notes that the Veteran submitted a waiver of this right on February 27, 2025. Entitlement to service connection for chronic kidney disease stage 4 is remanded. The Veteran contends that his chronic kidney disease stage 4 is related to his service, including from toxic exposure during his service at the Kunai Tunnel, Hawaii. The AOJ made favorable findings of diagnosis of chronic kidney disease stage 4 and participation in a toxic related exposure activity (TERA). The Board will not disturb these favorable findings. 38 C.F.R. § 3.104 (c). The Veteran's service treatment records reflect no complaints of or treatment for symptoms related to kidney disease. Treatment records reflect onset of kidney disease in 2022, several decades after separation from service. See 03/19/2023 CAPRI, p. 55 (03/21/2022 cardiologist referral to kidney specialist). An April 2024 VA examination provided a diagnosis of chronic kidney disease stage 4 with onset in March 2022. The examiner noted the etiology was unknown and may be due to a combination of the Veteran's hypertension and type II diabetes. No kidney calculi or hypertension due to kidney disease were noted. The examiner found no functional impact. The examination reflected the Veteran's confirmed participation in a TERA as a field artillery batteryman exposed to smoke and chemicals from burning artillery rounds/powder bags. An August VA medical opinion found no nexus between the Veteran's kidney disease and the TERA. The rationale provided was the two most common causes of chronic kidney disease include hypertension and diabetes and there was no evidence in the medical literature that chronic kidney disease is caused by the toxic or environmental exposures the Veteran had during service. The examiner did not provide an opinion regarding direct service connection. As the Board is herein remanding the Veteran's diabetes mellitus type II and hypertension claims, the chronic kidney disease must also be remanded as inextricably intertwined. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran contends that his diabetes mellitus type II is related to his service, including from toxic exposure during his service at the Kunai Tunnel, Hawaii. The AOJ made favorable findings of diagnosis of diabetes mellitus type II, participation in a TERA, and that diabetes mellitus is a condition presumptively linked to toxic exposure. The Board will not disturb these favorable findings. 38 C.F.R. § 3.104 (c). No service treatment records reflect complaints of or treatment for diabetes related symptoms in service. Treatment records reflect onset of diabetes mellitus type II in 2012, several decades after service. See 12/13/2012 CAPRI, p. 2 (11/06/2012 diagnosis). An April 2024 examination provided a diagnosis of diabetes mellitus type II with onset in 2012. The Veteran reported that he must watch his diet and experiences dizziness related to blood sugar fluctuations. The examination reflected the Veteran's confirmed participation in a TERA. The examiner opined that the Veteran's diabetes was less likely than not caused by the indicated TERA, reasoning that while exposure to lead in service could have had some effect on the Veteran's health, he also could have been exposed at his occupation of many years. The examiner further reasoned there are no medical studies that show a relationship between diabetes mellitus type II and other potential exposures, such as the smoke and chemicals from the burning rounds/powder bags the Veteran was exposed to in service, and that he was unable to speculate as to whether the development of type II diabetes was from service or from accumulation of in service and after service exposures. The examiner did not provide an opinion regarding either presumptive or direct service connection. The Board finds the VA opinion inadequate, constituting a pre-decisional duty to assist error. The examiner's opinion is speculative and inconclusive as to whether the Veteran's indicated TERA or some combination of the TERA and his post service occupation caused his diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (stating that a speculative medical opinion as to causation cannot establish a medical nexus to service). Accordingly, the matter is remanded for an addendum opinion. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is related to his service, including from toxic exposure during his service at the Kunai Tunnel, Hawaii. The AOJ made favorable findings of diagnosis of hypertension, participation in a TERA, and that hypertension is a condition presumptively linked to toxic exposure. The Board will not disturb these favorable findings. 38 C.F.R. § 3.104(c). No service treatment records reflect complaints of or treatment for hypertension in service. Treatment records reflect onset of hypertension in 2012, several decades after service. See 12/13/2012 CAPRI, p. 4 (10/11/2012 diagnosis of essential hypertension). An April 2024 VA examination provided a diagnosis of hypertension with onset in 2012. The Veteran endorsed symptoms of dizziness when standing up too fast and reported needing to change medications and dosages frequently over the years. The examination reflected the Veteran's confirmed participation in a TERA. The examiner opined that the Veteran's hypertension was less likely than not caused by the indicated TERA, reasoning that while some studies show exposure to particulate matter can cause cardiovascular problems, the Veteran's post service occupation could have exposed him to exhaust and pollutants as well. The examiner asserted there were no other studies showing a relationship between toxic exposure and hypertension, and that he could not speculate that the Veteran's hypertension was caused by his toxic exposure in service. The examiner did not provide an opinion regarding either presumptive or direct service connection. The Board finds the VA opinion inadequate, constituting a pre-decisional duty to assist error. The examiner's opinion is speculative and inconclusive as to whether the Veteran's indicated TERA, his post service occupation, or some combination thereof, caused his hypertension. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (stating that a speculative medical opinion as to causation cannot establish a medical nexus to service). Accordingly, the matter is remanded for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diabetes mellitus type II was caused by his military service, specifically including the conceded TERA? Why or why not? In providing the requested opinion, the examiner should comment on the Veteran's in-service exposure to toxic exposure risk activity conceded based on MOS of Field Artillery BatteryMan and due to service at Camp Pendleton and Wheeler Air Force Base and Kunai Tunnel where the Veteran was exposed to smoke, burn pits, chemicals, ordnance rounds (lead) and comment on any post-service exposure. Additionally, the examiner should state upon what facts and medical principles and/or medical literature the opinion is based and must consider the total potential exposure through the Veteran's military deployment and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension was caused by his military service, specifically including the conceded TERA? Why or why not? In providing the requested opinion, the examiner should comment on the Veteran's in-service exposure to toxic exposure risk activity conceded based on MOS of Field Artillery BatteryMan and due to service at Camp Pendleton and Wheeler Air Force Base and Kunai Tunnel where the Veteran was exposed to smoke, burn pits, chemicals, ordnance rounds (lead) and comment on any post-service exposure. Additionally, the examiner should state upon what facts and medical principles and/or medical literature the opinion is based and must consider the total potential exposure through the Veteran's military deployment and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Janet A. 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.