Citation Nr: 19180423 Decision Date: 10/22/19 Archive Date: 10/22/19 DOCKET NO. 11-16 772 DATE: October 22, 2019 ORDER The January 10, 1973 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for bilateral hearing loss was not clearly and unmistakably erroneous. An effective date prior to January 23, 2009, for the award of service connection for bilateral hearing loss is denied. REMANDED Service connection for a lung disorder, to include as due to herbicide exposure, is remanded. Service connection for a kidney disorder, to include as due to herbicide exposure, is remanded. Service connection for a heart disorder, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The evidence has not established, without debate, that any purported factual error on the part of the RO, had it not been made, would have manifestly changed the outcome of the January 10, 1973 rating decision, resulting in the grant of service connection for bilateral hearing loss, or that the RO incorrectly applied the applicable laws or regulations existing at the time. 2. The Veteran was denied service connection for bilateral hearing loss in a January 10, 1973 RO rating decision that became final. 3. On January 23, 2009, VA received the Veteran’s formal claim to reopen service connection for bilateral hearing loss. 4. No claim, formal or informal, to reopen service connection for bilateral hearing loss was received by VA prior to January 23, 2009. 5. All service department records relevant to the issue of service connection for bilateral hearing loss were before the RO at the time of the January 10, 1973 RO rating decision. CONCLUSIONS OF LAW 1. The January 10, 1973 RO rating decision denying service connection for bilateral hearing loss was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2018). 2. The criteria for an effective date prior to January 23, 2009 for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1969 to December 1972. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The instant matter was first before the Board in December 2014. In that decision, the Board denied an earlier effective date for the grant of service connection for hearing loss, including on a CUE basis, and remanded the issues of service connection for lung and kidney disorders. During the course of this appeal the issue of service connection for a heart disorder was also perfected. The Veteran appealed the Board’s earlier effective date denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2016 Memorandum Decision, the Court, in pertinent part, set aside the Board’s decision regarding the denial of an earlier effective date for bilateral hearing loss and remanded the claim to the Board for further proceedings consistent with the decision. Specifically, the Court found that the Board failed to address the definition of normal hearing as prescribed by VA’s April 1970 M21-1 Adjudication Procedures Manual (M21-1), ¶50.07a (1970) or the necessity of conversion from International Standards Organization (ISO) calibration to the American Standards Association (ASA) calibration. The Board addresses the Court’s findings and concerns in the decision below. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). In December 2016, the Board remanded the issues of service connection for lung and kidney disorders for adequate addendum opinions. Unfortunately, for the reasons discussed below, the opinions received remain inadequate and must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998). By law, the Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2018). Appeals can be assigned only to an individual Veterans Law Judge (VLJ), or to a panel of not less than three members. See 38 U.S.C. § 7102(a) (2012). A veteran is entitled to have an opportunity for a hearing before all VLJs who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). During the course of this appeal the Veteran had hearings before the Board on the earlier effective date and service connection for lung and kidney disorder issues before two of the undersigned VLJs in October 2012 and April 2019. The Veteran’s representative waived the right to a hearing before a third VLJ at the April 2019 hearing. While testimony on the issue of service connection for a heart disorder was only taken by the VLJ at the April 2019 Board hearing, the Veteran’s representative has authorized the panel to hear all issues, and, as such, all of the issues on appeal are addressed in the instant panel decision. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. Further, as the instant decision remands the service connection issues on appeal, no further discussion of VA’s duties to notify and assist is necessary as to those issues. Concerning the duty to notify, as the earlier effective date issue arises from the Veteran’s disagreement with the effective date assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, as will be explained below, the law, and not the facts, is dispositive of the effective date in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 1. CUE in January 10, 1973 Rating Decision Denying Service Connection for Bilateral Hearing Loss Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43 44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the January 10, 1973, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). Further, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). At the time of the January 10, 1973 RO rating decision, then, as now, service connection could be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (1970); 38 C.F.R. § 3.303(a) (1972). Further, while at the time of the January 10, 1973 RO rating decision there was no regulation in effect that determine what constituted “normal hearing” for VA rating purposes, the ROs instead followed the guidance of the M21-1 ¶50.07. In January 1973, there were two standards for recording hearing loss, ASA and ISO. At the time of the January 10, 1973 RO rating decision, the regulatory standard had not yet been changed to ISO, and the RO needed to convert any ISO readings into ASA readings when determining the severity of a veteran’s hearing loss. See M21-1 ¶50.07. Concerning what constituted normal hearing, the M21-1 ¶50.07a read as follows: Auditory Acuity—Normal Limits of Hearing. In consideration of service connection, hearing is within normal limits where the speech reception threshold is less than 16 decibels and the discrimination score is higher than 92 percent, and where the pure tone thresholds in the 250-500-1000-2000-4000 cycles per second range are all less than 30 decibels with at least 3 of the frequencies 15 decibels or less. Conversion from ISO to ASA requires simple subtraction, which the Board will perform in the instant decision. During the course of this appeal, including in a December 2017 brief, the Veteran’s representative has argued that the Board must remand the instant matter to have the RO perform the conversions in the first instance. The Board disagrees. In Savage v. Shinseki, 24 Vet. App. 259, 272 (2011), the Court directed the Board to compute average pure tone thresholds based upon information given in the examination reports, if the Board had such expertise, or to seek clarification if necessary. Further, in Kelly v. Brown, 7 Vet. App. 471, 475 (1995), the Court remanded to allow the Board to convert graphical audiogram results into pure tone averages. Here, the Board need not perform mathematical averaging equations, but merely needs to perform simple subtraction to convert the audiogram readings from ISO to ASA. As such, the Board finds it has the ability and authority to perform the ISO to ASA calculations in the instant decision. There is no question that the Veteran was diagnosed with hearing loss during service. Specifically, service treatment records reflect that the Veteran was diagnosed with low frequency hearing loss after an audiogram in March 1972, and was diagnosed with high frequency hearing loss at the time of the November 1972 service separation examination. However, mere diagnosis does not mean that the Veteran had hearing loss sufficient to constitute a disability for VA rating purposes at the time of the January 10, 1973 RO rating decision. Starting with the November 1972 audiogram, the service separation examination report reflects that the audiometric testing was done under the ISO standard. As such, pursuant to the M21-1 ¶50.07, the readings must be converted into ASA. Per the M21-1, to convert to ASA the rater must subtract 15 decibels (dB) from readings at 250 and 500 hertz (Hz), and 10 dB from readings at 1000, 2000, and 4000 Hz. After conversion, the Veteran’s ASA readings at service separation in November 1972 were as follows: HERTZ 250 500 1000 2000 4000 RIGHT None 10 10 0 5 LEFT None 5 15 15 10 As all of the converted ASA readings were less than 30 decibels with at least 3 of the frequencies 15 decibels or less, the Veteran did not have a hearing loss disability for VA rating purposes under the M21-1 ¶50.07 at the time of the November 1972 service separation examination. Concerning other audiograms received by the Veteran during service, there is an undated audiogram in which it is unclear to the Board whether or not the readings are in ASA or ISO. However, such an analysis is irrelevant as the readings at that time were as follows: HERTZ 250 500 1000 2000 4000 RIGHT None 15 15 15 15 LEFT None 15 15 15 15 As the readings were at 15 dB at all relevant Hz, even without conversion, the Veteran did not have a hearing loss disability for VA rating purposes under the M21-1 ¶50.07 at the time of the undated audiogram. The Veteran also received audiograms in March 1972, May 1972, and on June 1, 1972 and June 2, 1972. While these audiograms do not state whether the readings are under the ASA or ISO standard, having reviewed the records, the Board finds that these readings were made under the ISO standard. In reaching this conclusion, the Board notes that the readings were similar to those displayed at the time of the November 1972 audiogram, and also were close in time, having all been conducted in 1972. The Board notes that it has converted all four audiograms from ISO to ASA and finds that none of the audiograms reflect that the Veteran had a hearing loss disability for VA rating purposes under the M21-1 ¶50.07 at the time the aforementioned four audiograms were performed. Finally, the Board notes that the Veteran received an audiogram in October 1969. Review of the audiogram reflects that it was reported under the ASA standard, and that it did not show that the Veteran had a hearing loss disability for VA rating purposes under the M21-1 ¶50.07 at the time of that audiogram. In January 1973, the RO denied service connection for bilateral hearing loss, finding that service medical records showed no hearing loss. The RO went on to state that, “on March 6, 1972, three audiometric examinations were conducted but findings were all normal. On separation examination of November 16, 1972, audiometric examination was again normal.” The Veteran and representative argue that the RO erred in denying service connection for hearing loss, as the evidence before the RO in January 1973 showed that the Veteran was exposed to loud noise during service, had a threshold shift in dB, and was diagnosed on multiple occasions with hearing loss. Having reviewed the evidence of record, the Board finds that any factual error made by the RO at the time of the January 10, 1973 rating decision would not have manifestly changed the outcome, and, as such, is not CUE. At the time of the January 10, 1973 rating decision, the RO was not required to provide a statement of reasons or bases as to its conclusions. See Natali v. Principi, 375 F.3d 1375, 1381 (Fed. Cir. 2004) (holding that statements of reasons or bases in RO decisions were not required prior to the Veterans’ Benefits Amendments of 1989, which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision); see also Eddy v. Brown, 9 Vet. App. 52, 58 (1996) (holding that “silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record”). Consequently, in order to establish CUE in a rating decision prior to February 1990 based on the failure to consider a particular fact or law, “it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case.” Evans, 27 Vet. App. at 189 (quoting Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005)). The Board acknowledges that the RO did not discuss the in service diagnoses of hearing loss in the January 10, 1973 rating decision. Further, the Board also notes that the RO only mentioned the March 1972 and November 1972 audiograms when finding that the Veteran did not have hearing loss in service. However, even assuming, arguendo, that it is clear from the face of the decision that the RO did not consider the other audiograms of record, such error does not reach the high burden of CUE. As discussed above, the Board has reviewed all of the Veteran’s in service audiograms and converted from ISO to ASA where appropriate. None of the Veteran’s audiograms show that during service the Veteran had a hearing loss disability for VA rating purposes under the M21-1 ¶50.07. Therefore, it cannot be undebatably said that any purported factual error on the part of the RO would have manifestly changed the outcome had it not been made. All of the pure tone readings before the RO at the time of the January 10, 1973 rating decision indicated that the Veteran’s hearing was normal under the M21-1 ¶50.07. Finally, the Board notes that the March 1972 and June 1972 audiograms include speech reception threshold (SRT) testing. While the readings for the left ear appear to be normal in all cases, there is some indication in the March 1972 and June 1, 1972 SRT tests that the Veteran may have shown a hearing loss disability for VA purposes in the right ear. However, the June 2, 1972 SRT test appears to show a normal right ear. As there is both positive and negative evidence concerning whether the Veteran had speech discrimination in the right ear that raised to the level of a disability for VA rating purposes, it cannot be said that it is undebatable that service connection for a hearing loss disability would have been granted on this basis, as a reasonable mind could have found the June 2, 1972 SRT reading to be the correct reading. For the aforementioned reasons, the Board finds no CUE in the January 10, 1973 RO rating decision denying service connection for bilateral hearing loss. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. 2. Effective Date for Hearing Loss Except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2018). The term “claim” means a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2018). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2014). Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a) (2014). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) (2014). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2014). The Veteran was denied service connection for bilateral hearing loss in a January 10, 1973 RO rating decision. As noted in the Board’s CUE analysis above, that rating decision became final. On January 23, 2009, VA received the Veteran’s formal claim to reopen service connection for bilateral hearing loss. Subsequently, in a January 2010 rating decision, the RO granted service connection for bilateral hearing loss and awarded a 10 percent disability rating effective January 23, 2009, the date of claim to reopen service connection. Review of the record reflects that no claim, formal or informal, to reopen service connection for bilateral hearing loss was received by VA prior to January 23, 2009. In the June 2010 NOD, the Veteran argued that the effective date for the hearing loss should have gone back to the date of initial claim for service connection. The Board understands the Veteran’s contention that the effective date for bilateral hearing loss should go back to the original date of claim; however, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. While entitlement to service connection may have arisen earlier, the date entitlement arose does not decide the effective date in this case; the later date of claim to reopen does control. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant’s claim to reopen or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). During the course of this appeal, including in a March 2017 brief, the Veteran’s representative has argued that an earlier effective date under 38 C.F.R. § 3.156(c) is warranted due to relevant service department records being received after the issuance of the January 10, 1973 RO rating decision denying service connection for bilateral hearing loss. Under 38 C.F.R. § 3.156(c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section. An award made based all or in part on records identified in § 3.156(c)(1) is effective on the date entitlement arose or the date which VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. 38 C.F.R. § 3.156(c)(3). The basis for this argument is that, while the Veteran was denied service connection for bilateral hearing loss in a January 10, 1973 RO rating decision, the record contains a December 29, 1972 VA Form 07 3101, Request for Information, from the Nashville RO requesting that it be furnished with “all medical records and verify service prior to 4-3-70.” The Form indicated that the Veteran had been treated for hearing loss at Ft. Rucker, Alabama in November 1971. Per a subsequent DD Form 877, records concerning treatment for hearing loss in November 1971 from Ft. Rucker were “forwarded to St. Louis” on March 2, 1973. The Veteran’s representative argues that these service records received after the issuance of the January 10, 1973 RO rating decision warranted reconsideration of the January 10, 1973 RO rating decision under 38 C.F.R. § 3.156(c). The Board also notes that, if this evidence was new and material, then the January 10, 1973 RO rating decision would have been rendered non final under 38 C.F.R. § 3.156(b). Review of the Veteran’s service treatment records reflect a November 1971 treatment record from Lyster Army Hospital in Fort Rucker, Alabama. However, the treatment record concerns post operative bleeding and not hearing loss. While there are audiometric testing readings on the same page as the November 1971 Fort Rucker treatment record, the audiometric testing is dated from May 1972 and was conducted at a clinic in Tennessee. As one record contained information from two different treatment providers, the Board finds that this supports a finding that these service treatment records were before the RO at the time of the January 10, 1973 RO rating decision, as any newly received records from the Army hospital in Fort Rucker, Alabama would not have included a treatment note from Tennessee. As such, the Board does not find that relevant service records were received after the issuance of the January 10, 1973 RO rating decision, or that new and material evidence was received within one year of the issuance of the January 10, 1973 RO rating decision. In this case, the evidence shows that the Veteran was denied service connection for bilateral hearing loss in January 1973. The January 10, 1973 RO rating decision rating decision became final, and no claim, formal or informal, was received prior to January 23, 2009. Further, the Board does not find that relevant service records were received after the issuance of the January 10, 1973 RO rating decision, or that new and material evidence was received within one year of the issuance of the January 10, 1973 RO rating decision. On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, and no effective date for the award of service connection earlier than January 23, 2009 (date of receipt of formal claim to reopen service connection) is assignable, the appeal for an earlier effective date as to the issue of service connection for bilateral hearing loss is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to January 23, 2009 for the award of service connection for bilateral hearing loss is not warranted as a matter of law. REASONS FOR REMAND VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271 (1998). The availability of presumptive service connection for some conditions based on exposure to the herbicide Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange. Stefl v. Nicholson, 21 Vet. App. 120 (2007). 1. Service Connection for a Lung Disorder, to Include as Due to Herbicide Exposure 2. Service Connection for a Kidney Disorder, to Include Renal Cell Carcinoma, to Include as Due to Herbicide Exposure In the December 2016 Remand, the Board found the February 2016 opinion of a VA examiner inadequate because the VA examiner merely noted that the Veteran’s lung and kidney disabilities were not subject to presumptive service connection due to exposure to herbicides and failed to provide a direct service connection opinion. The Board remanded to obtain adequate opinions on the questions of whether it was at least as likely as not that a lung and/or kidney disorder was due to service, to include exposure to the herbicide Agent Orange. A VA addendum opinion was obtained in December 2017. Unfortunately, the VA examiner once again failed to provide adequate direct service connection opinions. Rather, the VA examiner merely stated that, “per 38 C.F.R. § 3.309, neither renal cell carcinoma, nor emphysema, nor old granulomatous disease are Agent Orange presumptive conditions.” While the Board regrets the further delay, remand to obtain an adequate direct service connection opinion is necessary. 3. Service Connection for a Heart Disorder, to Include as Due to Herbicide Exposure The Veteran received a VA heart examination in April 2015. At that time, the VA examiner found that the Veteran did not have a heart disability. In a June 2019 brief, the Veteran’s representative submitted evidence indicating that the Veteran may now have a diagnosable heart disorder. As such, the Board finds remand for a new VA heart examination to be warranted. The aforementioned matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the lungs, kidneys, and/or heart. Upon receipt of the requested information and the appropriate releases, the agency of original jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s lung, kidneys, and/or heart, not already of record, for the period from December 2017. 3. Return the December 2017 VA lung/respiratory and kidney examination reports to the VA examiner who conducted the examinations for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should render an opinion, consistent with the record and sound medical judgment as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed lung and/or kidney disorders were incurred in or otherwise attributable to service, to specifically include exposure to Agent Orange while serving in the Republic of Vietnam. The examiner should be cognizant that exposure to Agent Orange has already been conceded. 4. Schedule a VA heart examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: A) Does the Veteran have a currently diagnosed heart disorder? B) For each heart disorder diagnosed, it is at least as likely as not (i.e., a 50 percent or greater probability) that the heart disorder was incurred in or otherwise attributable to service, to specifically include exposure to Agent Orange while serving in the Republic of Vietnam. The examiner should be cognizant that exposure to Agent Orange has already been conceded. 5. Then, readjudicate the issues of service connection for lung, kidney, and heart disorders, including as due to herbicide exposure. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.