Citation Nr: 18143592 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-03 085 DATE: October 19, 2018 REMANDED Entitlement to service connection for chronic kidney disease, to include as due to exposure to an herbicide agent and secondary to service-connected diabetes mellitus, type II is remanded. Entitlement to service connection for hypertension, to include as due to exposure to an herbicide agent and secondary to service-connected diabetes mellitus, type II and/or posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1967 to August 1969. This matter is before the Board of Veterans’ Appeal (Board) on appeal from rating decisions issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran presented testimony at hearing before the undersigned in April 2018 and also before another judge in January 2014. A transcript of the hearing is associated with the claims file. This matter was most recently before the Board in January 2017 and January 2018, and has been returned for further appellate consideration. The Board notes that the Veteran indicated in January 2015 VA Form-9 that he only wished to appeal the denial of service connection for chronic kidney disease and not the denial of his claim for hypertension. However, the Board remands in January 2017 and January 2018 included the issue of service connection for hypertension despite the omission of the claim from the January 2015 VA Form-9. Because the previous Board decisions have included the inclusion of the claim for hypertension and the Veteran has been given the indication that hypertension is on appeal, thus the Board will continue with the issue of hypertension on appeal. Generally, VLJs who conduct hearings must participate in making the final determination of the claims involved. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2018). By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. See 38 U.S.C. § 7102 (a) (2012). When an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held. The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 2011. In correspondence dated in August 2018, the Veteran was advised of his right to a third hearing before a third VLJ. He was informed that if he failed to respond to the letter within thirty days, the Board would assume that he did not want a third hearing and proceed accordingly. Given that the Veteran has had a hearing before two of the members of the panel and failed to respond to the letter within thirty days, the Board finds that there is no Arneson-related impediment to issuing the decision herein. Moreover, a remand is not a final decision on the merits of a claim, but a preliminary finding that additional development is necessary. Therefore, a panel is not required at this time. 1. Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected diabetes mellitus, type II. is remanded. 2. Entitlement to service connection for hypertension, to include as due to exposure to an herbicide agent and secondary to service-connected diabetes mellitus, type II and/or posttraumatic stress disorder (PTSD) is remanded. The Veteran is currently seeking entitlement to service connection for chronic kidney disease. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to adjudication of this claim. This claim was most recently remanded by the Board in January 2018. At that time, the RO was instructed as follows: (1) obtain and associate any outstanding VA treatment records, (2) request an addendum opinion from the April 2017 VA examiner providing clarification as to his April 2017 medical opinions regarding the etiology of the Veteran’s claimed hypertension and kidney disease, and (3) issue a Supplemental Statement of the Case (SSOC) if the claims remained denied. A claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Here, the Veteran’s outstanding VA medical records were associated with the records. However, there was no attempt made to obtain an addendum opinion regarding the etiology of his claimed hypertension and kidney disease. Accordingly, the Board finds that another remand is required at this time to ensure compliance with the January 2018 remand directives. See Stegall, 11 Vet. App. at 271. Additionally, the Board finds the April 2017 hypertension and kidney condition VA examinations are inadequate for rating purposes. With regards to the Veteran’s claimed kidney disease, the examiner found that the Veteran’s claimed kidney condition was not related to his military service and not caused by his service-connected diabetes mellitus. The examiner provided that the Veteran’s service treatment records do not support that chronic kidney disease was incurred in-service. Moreover, the examiner opined that the Veteran’s diagnosis of kidney disease predated his diagnosis of diabetes mellitus, thus diabetes mellitus could have not caused the Veteran’s claimed kidney disease. However, the examiner did not provide rationale as to whether the Veteran’s kidney disease could be aggravated by his service-connected diabetes mellitus. Therefore, further medical guidance is needed to address the question of aggravation. Turning to the Veteran’s claim for hypertension, the April 2017 examiner also found that Veteran’s condition was not related to service and not caused or aggravated by his service-connected diabetes mellitus. Again, the examiner relied on the date of diagnosis as the primary support as to why he found that the Veteran’s hypertension was not caused by his service-connected diabetes mellitus. However, the examiner did not provide adequate rationale as to question of aggravation, thus further medical guidance is needed to address the question of aggravation. The examiner also did not provide any opinion as to whether the Veteran’s hypertension was either caused or aggravated by his service-connected PTSD, therefore additional medical guidance is needed here as well. The Board notes that the Veteran did serve in Vietnam during the presumptive period of January 9, 1962 to May 7, 1975, thus the Veteran is presumed to have been exposed to an herbicide agent during his service in Vietnam. 38 C.F.R. § 3.307. The Board notes that hypertension and kidney disease are not on the list of diseases enumerated in 38 C.F.R. § 3.309 (e) for which presumptive service connection is warranted based on herbicide exposure. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Neither April 2017 VA examination addressed whether the Veteran’s claimed hypertension or kidney disease could have been related to herbicide exposure during his military service. As noted above, regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee, 34 F.3d at 1039. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Forward the record and a copy of this remand to the VA clinician who performed the April 2017 VA kidney condition and hypertension examinations or, if that clinician is not available, to another similarly qualified VA clinician for preparation of an addendum opinion. Further in-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination necessary to provide the information requested below, then such an examination should be scheduled. Following a review of the record, the examiner must address the following: (a) Is it at least likely as not (a fifty percent probability or greater) that the Veteran’s kidney disease is related to his active duty service, to specifically include exposure to herbicides, Agent Orange (without regard of the presumption)? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s kidney disease was caused by the Veteran’s service-connected diabetes mellitus? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s kidney disease was chronically worsened (aggravated) by the Veteran’s service-connected diabetes mellitus? (d) Is it at least likely as not (a fifty percent probability or greater) that the Veteran’s hypertension is related to his active duty service, to specifically include exposure to herbicides, Agent Orange (without regard of the presumption)? (e) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by the Veteran’s service-connected diabetes mellitus? (f) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by the Veteran’s service-connected PTSD? (g) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was chronically worsened (aggravated) by the Veteran’s service-connected diabetes mellitus? (h) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was chronically worsened (aggravated) by the Veteran’s service-connected PTSD? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner should address his acknowledgement that diabetes can cause hypertensive and kidney problems over time, but did not cause or even aggravate the Veteran’s claimed hypertension and kidney disease. The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner’s opinion must be provided. 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). 2. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel