Citation Nr: 18142206 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-00 367 DATE: October 15, 2018 REMANDED The claim of entitlement to service connection for a kidney disability is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for peripheral vascular disease of the upper extremities is remanded. The claim of entitlement to service connection for peripheral vascular disease of the lower extremities is remanded. The claim of entitlement to service connection for a foot disability other than tinea pedis, to include keratoderma of the feet and foot ulcers, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to July 1967, to include service in the Republic of Vietnam from November 1965 to November 1966. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, inter alia, denied service connection for a kidney disability, hypertension, peripheral vascular disease of the upper extremities, and peripheral vascular disease of the lower extremities. In October 2015, the Veteran filed a notice of disagreement (NOD) with these denials. In November 2015, the Board, inter alia, remanded these issues to the agency of original jurisdiction (AOJ) for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A statement of the case (SOC) addressing the claims for service connection for a kidney disability, hypertension, peripheral vascular disease of the upper extremities, and peripheral vascular disease of the lower extremities was subsequently issued in December 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. The Board’s review of the claims file reveals that further AOJ action in this appeal is warranted. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the record “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. The Veteran contends that he has a kidney disability, hypertension, peripheral vascular disease of the upper extremities, and peripheral vascular disease of the lower extremities that are each related to service—specifically, exposure to Agent Orange therein. The Board notes that the Veteran originally contended that these conditions were related to service-connected diabetes mellitus. However, service connection for type 2 diabetes mellitus was severed in the above-mentioned July 2015 rating decision. Nonetheless, in this case, VA treatment records show diagnoses of chronic kidney disease, acute kidney failure, hypertension, and peripheral vascular disease. See March 2015, November 2014, and June 2013 VA Treatment Records. In addition, the Veteran’s service records confirm that he served in Vietnam from November 1965 to November 1966. Consequently, he is presumed to have been exposed to Agent Orange during such service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Notably, although kidney disease, hypertension, and peripheral vascular disease are not among the list of disabilities for which presumptive service connection based on Agent Orange exposure is available (see 38 C.F.R. §§ 3.307, 3.309), service connection for a disability claimed as due to Agent Orange exposure may also be established by showing that a disorder resulting in disability is in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); see also Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Moreover, although the VA has not conceded a relationship between hypertension and exposure to Agent Orange, based on the National Academy of Sciences (NAS) report, Veterans and Agent Orange: Update 2012, VA has recognized the NAS finding that there is “limited or suggestive evidence” of an association between hypertension and Agent Orange exposure. 79 Fed. Reg. 20308, 20309-20310 (April 11, 2014). To date, no VA examination has been conducted or medical opinions otherwise obtained for any of the Veteran’s claimed disabilities. However, with respect to each claimed disability, given all the above, the Board finds that the threshold requirements discussed in McLendon are met, thus warranting VA examinations. Therefore, on remand, the AOJ should arrange for the Veteran to undergo VA kidney and hypertension/vascular examinations, each by an appropriate physician. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of his claim(s). See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Memphis, Tennessee, and that records from that facility dated through December 2015 are associated with the file; however, more recent records may exist. Therefore, the AOJ should obtain from the Memphis VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since December 2015, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating each claim on appeal. As a final matter, with regard to the foot disability claim, as discussed in the November 2015 Board remand, in a February 2012 rating decision, the RO granted service connection for tinea pedis of the feet, but also noted that the other diagnoses of keratoderma and mal perforans ulcer were found to be less likely than not secondary to service-connected disability. Although the February 2012 rating decision did not explicitly and separately deny service connection for these other feet conditions, in the November 2015 Board remand, the Board found that the claim for a foot disability other than tinea pedis, to include keratoderma of the feet and foot ulcers, was denied in this rating decision. The Board also construed the Veteran’s February 2013 NOD as to the initial rating assigned for service-connected tinea pedis as also an NOD as to the denial of service connection for a foot disability other than tinea pedis. Accordingly, the Board remanded this matter to the AOJ for issuance of an SOC, pursuant to Manlincon. To date, however, the AOJ has not yet issued an SOC with respect to this matter, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon, supra; Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the AOJ for the issuance of an SOC. See id. See also Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. These matters are hereby REMANDED for the following action: 1. Furnish to the Veteran an SOC addressing the claim for service connection for a foot disability other than tinea pedis, to include keratoderma of the feet and foot ulcers, along with a VA Form 9, and afford him the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue. The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected—here, with respect to the foot claim referenced above, within 60 days of the issuance of the SOC. 2. Obtain from the Memphis VAMC all outstanding records of evaluation and/or treatment of the Veteran, dated since December 2015. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran a letter requesting that he provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA hypertension and vascular examinations, each by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and each examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to each examiner prior to the completion of his or her report, and all clinical findings should be reported in detail. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. Hypertension – The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that diagnosed hypertension had its onset in or is otherwise medically-related to service—to particularly include Agent Orange exposure therein. Peripheral Vascular Disease – The examiner should clearly identify all peripheral vascular disease currently present or present at any point pertinent to the current claims on appeal (even if now asymptomatic or resolved). Then, for each such diagnosed peripheral vascular disease, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset in or is otherwise medically-related to service—to particularly include Agent Orange exposure therein. In addressing the above, each examiner must consider and discuss all pertinent medical and other objective evidence of record, to include, regarding hypertension, the above-referenced NAS report concluding that there is limited or suggestive evidence of an association between hypertension and Agent Orange exposure. Each examiner must also consider and discuss all lay assertions, to include, the Veteran’s assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis for a negative etiology opinion. In this regard, each examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA kidney examination, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should first clearly identify all kidney disability(ies)—to include chronic kidney disease and acute kidney failure—currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, for each such diagnosed kidney disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset in or is otherwise medically-related to service—to particularly include, Agent Orange exposure therein. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions—to include, the Veteran’s assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis for a negative etiology opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel