Citation Nr: 21000085 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-21 049 DATE: January 4, 2021 REMANDED Entitlement to service connection for kidney disease, to include as secondary to service-connected diabetes mellitus, type II and/or secondary to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1958 to February 1962, and then again from May 1962 to April 1978. The Veteran’s active duty service includes verified service within the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran sadly passed away during the pendency of his appeal, in December 2012. The appellant is his surviving spouse, who has been accepted as the substitute claimant. This appeal is advanced on the docket on account of the appellant’s advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for kidney disease, to include as secondary to service-connected diabetes mellitus, type II and/or secondary to exposure to herbicide agents, is remanded. By way of background, the Veteran submitted to a VA examination in July 2011 as pertaining to his kidneys. In remanding the claim on appeal via its December 2019 remand, the Board determined that the July 2011 etiology opinion was inadequate. See BVA Remand ( Dec. 3, 2019 ). This inadequacy was in determining that the Veteran’s kidney disorder was less than 50 percent likely attributable to service-connected diabetes mellitus type II because the kidney diagnosis predated the diabetes diagnosis, with no further explanation therein. As a result, the Board remanded the claim to obtain an addendum opinion that adequately states whether the kidney disorder is at least 50 percent likely attributable to service—to include the Veteran’s conceded exposure to herbicide agents. Meanwhile, the December 2019 remand also directed the agency of original jurisdiction (AOJ) to obtain an etiology opinion as to whether the Veteran’s kidney disorder was aggravated beyond its natural progression by his service-connected diabetes mellitus, type II or was directly related to his service, to include his exposure to herbicide agents. After the December 2019 remand, the Veteran’s claims file was forwarded to an examiner, who provided a further opinion in January 2020. See VA Exam ( Jan. 17, 2020 ). The appellant was most recently issued a Supplemental Statement of the Case (SSOC) in July 2020. The Board accordingly reasserts jurisdiction over the claim. The appellant is entitled to substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board concludes that the appellant has not been afforded substantial compliance with the January 2020 examination. This is because the examiner failed to provide an adequate opinion as to direct service connection. The examiner stated that the Veteran's May 1978 exit examination was negative for complaints, treatment or diagnosis of a kidney condition, that the National Academy of Sciences and Agent Orange Update 11 (2018) found no new presumptive regarding kidney disorders such as membranous nephropathy was warranted and that it was therefore less likely than not the Veteran’s kidney disease began in service or was otherwise related to service. However, the opinion was provided without an adequate rationale and did not consider whether the Veteran’s conceded exposure to herbicide agents directly resulted in his kidney disorder. On remand, an addendum opinion addressing whether the Veteran’s kidney disorder began in service or otherwise related to service should be obtained. The matter is REMANDED for the following action: Forward the record to an appropriate VA examiner for review. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. For the diagnosed kidney disorder, the examiner should state whether it is at least as likely as not (e.g., at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service, to include the Veteran's conceded exposure to herbicide agents during service. The examiner may not rely solely on the fact that the Veteran's kidney disease is not on the presumptive list of diseases associated with herbicide agent exposure when providing this opinion. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate 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.