Citation Nr: 20006697 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 19-19 016 DATE: January 29, 2020 REMANDED Entitlement to service connection for chronic lymphocytic leukemia (CLL) is remanded. Entitlement to an increased rating in excess of 60 percent for the Veteran's service-connected chronic kidney disease (CKD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1978 to June 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2017 and October 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for CLL and continued his 60 percent rating for CKD. 1. Entitlement to service connection for CLL is remanded. The Veteran contends this he is entitled to service connection for his CLL due to exposure to radiation and chemicals at Fort McClellan, Alabama (FTMC), to include herbicide agents. See February 2017 service connection claim; see also April 2017 Veteran’s affidavit. The Veteran served at Fort McClellan from October 1980 to January 1981 and from February 1989 to September 1991. See April 2017 DPRIS response. To support his claim, he submitted a report by weed scientist, Dr. H.M., who opined “to a reasonable degree of certainty that those serving and/or living at FTMC between 1974-1976 were exposed to the herbicide agents discussed herein - the same ones used in Vietnam.” See October 2018 Dr. H.M. report. She did not opine, however, as to whether anyone who served at Fort McClellan after 1976 was exposed to the same herbicide agents used in Vietnam. The record reflects a response from a compensation services inquiry noting that there was no use of Agent Orange in FTMC for combat use, storage, or shipment. See June 2017 email correspondence. The response continues that referral to the U.S. Army and Joint Services Records Research Center (JSRRC) is recommended. Id. The evidentiary record does not reflect that a referral has been made with the U.S. Army, JSRRC, National Archives and Records Administration (NARA), or other appropriate agency to corroborate whether herbicide agents were present in Fort McClellan, Alabama, around the time the Veteran served there. Such efforts should be undertaken at this time. 38 C.F.R. § 3.159(c)(2). Moreover, the Veteran has not been afforded a VA examination for this disability despite his contentions. Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold. See 20 Vet. App. at 83. The Veteran has CLL. See March 2017 private medical records. As noted above, the Veteran contends this he is entitled to service connection due to exposure to chemicals at FTMC, to include herbicide agents and radiation. See February 2017 service connection claim; see also April 2017 Veteran’s affidavit. Though, whether the Veteran was exposed to herbicide agents in FTMC requires development, the Veteran has stated he was exposed to radiation in service through a “test stick” within an instrument known as “AN/PDR27” that he commonly was near. See April 2017 Veteran’s affidavit. The Board notes that the Veteran’s military occupation specialty was as a nuclear, biological, and chemical specialist. Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran’s current disability is related or attributable to his time on active duty. 2. Entitlement to an increased rating in excess of 60 percent for the Veteran's service-connected chronic kidney disease (CKD) is remanded. The Veteran submitted an increased rating claim for his CKD in July 2017. See July 2017 increased rating claim. The evidentiary record does not contain any evidence of the Veteran’s current level of severity for his CKD. Indeed, the last medical entry in which the Veteran was present was for an evaluation of his CKD in late June 2017 at Southern Nephrology Clinic. See August 2017 private medical records. During that visit, the entry indicates that reassessment was needed after urine and renal tests could be accomplished, to include creatinine levels. Id. A September 2017 VA examination report indicated that the Veteran was not present for the examination despite several unsuccessful attempts to contact the Veteran. See September 2017 VA examination report. The Board notes that the evidentiary record does not contain any communications with the Veteran of the scheduled VA examination or that the failure to report would result in the denial of his claim. See 38 C.F.R. § 3.655(b). The September 2017 VA examination report cited the June 2017 medical entry for laboratory results that showed creatinine levels at 1.6. See September 2017 VA examination report. However, the results to which the examiner referred are not attributed to any particular date. See August 2017 private medical records. Indeed, the private doctor requested that the Veteran return to the clinic in four weeks for laboratory work, to include a renal function panel; these results are not in the record. Id. Results from other laboratory tests in the September 2017 VA examination report refer to tests from 2014 and prior. See September 2017 VA examination report. Thus, the September 2017 VA examination report does not provide the current state of the Veteran’s CKD. “Where the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination.” See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citation omitted). The Board finds a new examination is needed to assess the Veteran’s current CKD severity. 3. Entitlement to TDIU is remanded. In Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when the record raises such claim. The Veteran stated his service-connected CKD contributes to his inability to work. See August 2019 VA Form 9. As a decision on the remanded issue of entitlement to an increased rating for CKD could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his CLL and CKD that are not already of record, to include any outstanding private treatment records from Southern Nephrology Clinic. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Request that the U.S. Army, JSRRC, NARA, or any other appropriate agency attempt to verify whether herbicide agents were used or stored at Fort McClellan from October 1980 to January 1981 and from February 1989 to September 1991. 3. After the above development is completed, schedule the Veteran for an examination to determine the nature and etiology of his CLL. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s CLL was incurred in, or is otherwise related to, his time on active service, to include exposure to radiation or to herbicide agents, if any exposure to herbicide agents is indicated by the record? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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. 4. After completing the development in #1, schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected CKD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.