Citation Nr: 1734058 Decision Date: 08/18/17 Archive Date: 08/23/17 DOCKET NO. 12-23 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for renal cancer. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for hypertension. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2014, the Board denied the claims currently on appeal. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and in March 2015, the Court granted a Joint Motion for Partial Vacatur and Remand and remanded the issues currently on appeal back to the Board for further development. In May 2015, the Board remanded these matters for additional development. In September 2015, the Board denied the claims for entitlement to service connection for kidney cancer, prostate cancer, and erectile dysfunction and remanded the claims for entitlement to service connection for hypertension and to a TDIU. The Veteran appealed this denial to the Court, and in December 2016, the Court granted a Joint Motion for Partial Remand and remanded the issues to the Board for further development. In March 2017, the Board again remanded these matters for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Board's review of the record reveals that further development on these matters is warranted. As an initial matter, in the March 2017 Remand, the Board instructed the AOJ to obtain the following VA medical opinions: (1) whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's kidney cancer had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury, to include exposure to Agent Orange. The examiner must provide a complete rationale for any proffered opinions. In this regard, the examiner must discuss and consider the May 1990 treatise evidence, as well as the April 2014 medical opinion from the Veteran's VA primary care physician. (2) whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury, to include exposure to Agent Orange. The examiner must provide a complete rationale for any proffered opinions. In this regard, the examiner must discuss and consider the November 2016 article referenced by the Veteran's representative in the February 2017 Informal Hearing Presentation. In a March 2017 VA medical opinion, the VA examiner opined that the claimed kidney cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In the cited rationale, the examiner highlighted that the Veteran's kidney cancer was diagnosed in 2009, over 30 years after his time in service. The examiner detailed that there were no signs or symptoms of kidney cancer while in service. The examiner then noted that current medical literature did not show that Agent Orange causes kidney cancer at this time. Citing to medical treatise evidence from Mayo Clinic, the examiner noted that the Veteran had multiple risk factors for kidney cancer, including age, smoking history, hypertension, and obesity. In an addendum April 2017 VA medical opinion, the VA examiner simply reiterated the same opinion that kidney cancer 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 noted that the May 1990 treatise evidence, May 2011 article excerpt, and the April 2014 medical opinion were all "reviewed". In a March 2017 VA medical opinion, the same VA examiner essentially provided the same text that was her prior October 2016 VA medical opinion and opined that the Veteran's hypertension was less likely than not related to service, including in-service herbicide exposure. In the cited rationale, the examiner highlighted that the Veteran had several major risk factors for hypertension, to include age, tobacco use (long history of 2 pack per day smoker), obesity (BMI 29.04 in 2002), and alcohol use (12/23/02 note showed that the Veteran has several drinks a day). The VA examiner concluded that a combination of these factors was most likely the cause of the Veteran's hypertension. The examiner specifically indicated that study after study had shown that those risk factors could cause hypertension, especially in combination. The examiner then commented that there was only limited or suggestive evidence of an association between exposure to Agent Orange and hypertension as well as cited to medical treatise evidence from the Mayo Clinic. The examiner did not discuss or consider the November 2016 article referenced by the Veteran's representative in the February 2017 Informal Hearing Presentation. Based on the foregoing discussion as well as the assertions by the Veteran's representative in the July 2017 Informal Hearing Presentation, the Board has determined that the March and April 2017 VA medical opinions are inadequate for purposes of determining entitlement to service connection for kidney cancer and hypertension. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner who drafted those VA medical opinions did not provide any meaningful discussion of the favorable evidence of record as instructed. As such, the Board finds that the AOJ has not substantially complied with the directives of the prior March 2017 remand and, thus, a remand for curative action is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that yet another remand for VA medical opinions is required due to the AOJ's inability to follow the clear directives set forth by the Board. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Veteran's claims for entitlement to service connection for prostate cancer and erectile dysfunction are inextricably intertwined with his claim for entitlement to service connection for renal or kidney cancer. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Presently, service connection is in effect for ischemic heart disease, rated as 60 percent disabling, effective December 15, 2016. As such, the Veteran does meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for schedular consideration of entitlement to TDIU. While a January 2017 VA examiner noted the Veteran's heart condition did not impact his ability to work, the Board finds that the evidence of record contains insufficient information to make an adequate determination as to whether the Veteran's sole service-connected disability, ischemic heart disease, prevents him from obtaining and retaining substantially gainful employment. As such, the Board finds that a remand is warranted in order to afford the Veteran a VA examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the record before the Board contains insufficient medical information for evaluation purposes). Finally, evidence of record reflects that the Veteran has received VA medical treatment for his claimed disorders from the New York VA Healthcare System (VAHCS), to include Buffalo and Canandaigua VA Medical Centers (VAMC). As evidence of record only includes treatment records dated up to July 2017 from those facilities, all pertinent VA treatment records should be obtained and associated with the record. See 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all VA treatment records pertaining to the Veteran's claimed renal, prostate, erectile dysfunction, and hypertension disorders from the New York VAHCS, to include Buffalo VAMC and Canandaigua VAMC, for the period from July 2017 to the present. 2. Thereafter, obtain a VA medical opinion from an appropriate examiner other that the VA examiner that drafted the March and April 2017 VA medical opinions, PREFERABLY A PHYSICIAN, to determine the nature and etiology of the Veteran's claimed kidney cancer. The electronic claims file and a copy of this remand must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report of the examiner. If an opinion cannot be provided without an examination, one should be provided. For the present kidney cancer, the examiner must provide an opinion whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's kidney cancer had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury, to include exposure to Agent Orange. The examiner's cited rationale must reference actual documents contained in the record and comment on all evidence favorable to the Veteran's claim, including the May 1990 classified report suggesting a relationship between kidney cancer and herbicide exposure; the excerpt of a May 2011 article from HealthDay News that noted a new study suggested there appeared to be a link between Agent Orange and kidney cancer in U.S. Veterans exposed to herbicides in Vietnam; and the April 2014 medical opinion from the Veteran's VA primary care physician that in-service herbicide exposure caused or contributed to renal cancer. The examiner must DISCUSS and RECONCILE the findings located in those documents as well as in the June 2015, March 2017, and April 2017 VA examination reports and medical opinions of record. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2016). 3. Obtain a VA medical opinion from an appropriate examiner other that the VA examiner that drafted the March 2017 VA medical opinion, PREFERABLY A PHYSICIAN, to determine the nature and etiology of the Veteran's claimed hypertension. The electronic claims file and a copy of this remand must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report of the examiner. If an opinion cannot be provided without an examination, one should be provided. For the present hypertension, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury, to include exposure to Agent Orange. The examiner's cited rationale must reference actual documents contained in the record and comment on a November 2016 article titled "Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans," published in the Journal of Occupational and Environmental Medicine that was referenced by the Veteran's representative in the February 2017 Informal Hearing Presentation of record. The examiner must DISCUSS and RECONCILE the findings located in that document as well as in the June 2015, October 2016, and March 2017 VA examination reports and medical opinions of record. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2016). 4. Obtain a VA medical examination to determine whether the functional effects of the Veteran's sole service-connected disability, ischemic heart disease, precludes him from securing and following substantially gainful employment, consistent with his education and occupational expertise. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must also elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the functional effects of the Veteran's service-connected disability prevented him from obtaining or retaining employment consistent with his education and occupational experience, irrespective of his age and any nonservice-connected disorders, for the time period from December 2016 to the present. The VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disability, ischemic heart disease. The examiner must furnish a full description of the effects of the service-connected disability on the Veteran's ordinary activities, which include employment. This description may include an opinion on such questions as whether the Veteran's service-connected disability precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, performing other specific tasks, etc. The examiner should acknowledge and discuss any functional impact findings contained in the January 2017 VA examination report. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2016). 5. The AOJ must review the record to ensure that the foregoing requested development has been completed. In particular, review any VA medical examination and/or opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).