Citation Nr: 21000785 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-20 276 DATE: January 6, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a cerebrovascular accident (a stroke) is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to special monthly compensation (SMC) for the loss of use of a creative organ is remanded.   REASONS FOR REMAND The Veteran served on active duty from February 1971 to September 1972, including in Korea at or near the demilitarized zone (DMZ). 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. 3. Entitlement to service connection for a cerebrovascular accident (a stroke) is remanded. 4. Entitlement to service connection for chronic kidney disease is remanded. By way of procedural history, a January 2018 Board decision denied entitlement to service connection for hypertension, erectile dysfunction, chronic kidney disease, cerebrovascular accident, and SMC. The Veteran appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC), which vacated that January 2018 decision and remanded these claims back to the Board for further development and readjudication in compliance with specified directives. The CAVC found that there was not compliance with the directives of a prior October 2016 Board remand. See Stegall v. West, 11 Vet. App. 269, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Accordingly, in April 2019, the Board remanded these claims back to the agency of original jurisdiction (AOJ), pursuant to agreement in a September 2018 Joint Motion for Remand (JMR) the Court had granted when vacating the Board’s decision denying these claims. To this end, the Veteran was afforded VA examinations in October 2020 to determine the nature and etiology of his claimed conditions. However, the Board finds that these examinations are inadequate for readjudication purposes since the examiner relied exclusively on the absence of diagnoses, treatment, or symptoms in the Veteran’s service treatment records (STRs) as reason for disassociating these claims conditions from his service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). The October 2020 VA examiner also concluded that these claimed conditions were not aggravated by the Veteran’s service-connected type II diabetes mellitus because there was no evidence of clinical progression beyond their natural progression, but offered no rationale for this finding, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In addition, the Board’s prior April 2019 remand directed the VA examiner to address whether the Veteran’s claimed conditions are related to his in-service herbicide exposure, irrespective of whether they are among the diseases presumptively associated with said exposure according to 38 C.F.R. § 3.309(e). However, the October 2020 examiner merely stated “the claimed conditions are not presumptive of herbicide exposure” in determining they are unrelated to the Veteran’s military service. Therefore, her opinion is inadequate with respect to the question involving a relationship between his claimed conditions and his conceded exposure to Agent Orange in Korea. The examiner’s bare conclusion that the Veteran’s claimed conditions are not related to Agent Orange exposure because they are not presumptively related to herbicide exposure under VA regulations is inadequate. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (indicating that, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established alternatively on a direct-incurrence basis by establishing the required causation). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); and McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee – which, in actuality, involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). Finally, the April 2019 Board remand directed that, in addition to obtaining all outstanding VA treatment records from August 17, 2015 to the present, the local regional office (RO) was to also obtain an August 6, 2015 Choice First record referenced in an August 17, 2015 VA treatment record. A preliminary review of the record shows that the outstanding VA treatment records since have been obtained and associated with the claims file, but the August 6, 2015 Choice First record has not. These claims, consequently, again must be remanded to try and correct these failings. 5. Entitlement to SMC for the loss of use of a creative organ also is remanded. This remaining claim of entitlement to SMC based on the loss of use of a creative organ is “inextricably intertwined” with the claim of entitlement to service connection for erectile dysfunction (ED). See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, consideration of this SMC claim must be deferred until resolution of the inextricably intertwined claim concerning the ED. Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together, rather than piecemeal, since the claims have common parameters). Accordingly, these claims are again REMANDED for the following still additional development and consideration: 1. Obtain the August 6, 2015 Choice First record. If this record cannot be obtained after reasonable efforts have been made, made a formal determination that this record does not exist or that further efforts to obtain it would be futile, and document this in the claims file. The Veteran also must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the record, himself, as provided in U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain a supplemental, i.e., addendum medical opinion concerning the nature and etiology of the Veteran’s hypertension, ED, chronic kidney disease, and stroke.   Based on the Veteran’s statements regarding the development and treatment of these claimed disabilities, and after review of the relevant evidence in his claims file, including a complete copy of this remand and the Board’s prior remand, the examiner is asked to answer the following questions: Assuming, as the prior examiner concluded, the Veteran’s service-connected type II diabetes mellitus did not cause his hypertension, ED, chronic kidney disease, and cerebrovascular accident, is it alternatively at least as likely as not (a 50 percent probability or greater) that his type II diabetes mellitus aggravates his hypertension, ED, chronic kidney disease, and/or cerebrovascular accident? In answering this question, the examiner should specifically comment on the November 2015 opinion regarding the etiology of the Veteran’s kidney damage in determining whether his hypertension is aggravated by his type II diabetes mellitus. *Permanent worsening is not required for § 3.310(b) aggravation; also, the worsening contemplated by § 3.310(b) aggravation does not have to be beyond the condition's natural progression (instead, that now only applies to § 1153 aggravation in service). See Ward v. Wilkie, 31 Vet. App. 233 (2019). Ward clarified that any incremental increase in disability is sufficient for § 3.310(b) aggravation given the holding in another precedent case, Allen v. Brown, 7 Vet. App. 439 (1995).   If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the hypertension, ED, chronic kidney disease, and/or cerebrovascular accident by the service-connected type II diabetes mellitus. If not, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension, ED, chronic kidney disease, and/or cerebrovascular accident began during his service, within a year of his discharge, or are otherwise related to a disease, an event, or injury in service, to include herbicide exposure? In answering this question, the examiner should address the Veteran’s accepted herbicide exposure in service, while in Korea – including that hypertension was rather recently upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to said exposure to the category of "sufficient" evidence of an association. According to the National Academy of Sciences (NAS) study, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. So, comment on this study is needed, irrespective of any claimed disability not being included on the list of diseases presumptively associated with Agent Orange exposure. With regard to the Veteran’s ED, the examiner should also discuss the significance, if any, of the Veteran’s circumcision in service and reports of penile pain on the etiology of the disability. When responding to the questions concerning direct service connection, the absence of hypertension, ED, chronic kidney disease, and/or cerebrovascular accident in the Veteran’s STRs cannot be the sole reason for providing a negative opinion, certainly also not in the context of the claims to the extent they are primarily predicated instead on secondary service connection. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.