Citation Nr: 21002308 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-17 837 DATE: January 13, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a kidney disorder. To that extent, the claim is granted. New and material evidence has been received to reopen a claim of service connection for hypertension. To that extent, the claim is granted. REMANDED Whether new and material evidence has been received to reopen a claim of service connection for a prostate condition, to include as due to exposure to herbicide is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II and/or as due to exposure to herbicides is remanded. Entitlement to service connection for a kidney disorder, to include as secondary to service-connected diabetes mellitus type II and/or as due to exposure to herbicides is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is remanded. FINDINGS OF FACT 1. An October 2016 rating decision denied reopening a claim of service connection status-post renal cancer with right nephrectomy. 2. Evidence added to the record since the October 2016 rating decision provides a reasonable possibility of substantiating the claim of service connection for a kidney disorder, as secondary to the Veteran’s service-connected diabetes mellitus type II and/or to exposure to herbicides. 3. An October 2011 rating decision denied service connection for hypertension. 4. Evidence added to the record since the October 2011 rating decision provides a reasonable possibility of substantiating the claim of service connection for hypertension, as secondary to the Veteran’s service-connected diabetes mellitus type II and/or to exposure to herbicides. CONCLUSIONS OF LAW 1. The October 2016 rating decision that denied reopening a claim of service connection for status-post renal cancer with right nephrectomy is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the October 2016 rating decision is new and material, and the claim for service connection for a kidney disorder, to include as secondary to service-connected diabetes mellitus type II and/or exposure to herbicides is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The October 2011 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. Evidence received since the October 2011 rating decision is new and material, and the claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II and/or exposure to herbicide is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1964 to September 1972. In October 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record In the November 2018 rating decision on appeal, the AOJ reopened the claim for service connection for hypertension and denied the claim on de novo review. Irrespective of the AOJ’s action, the Board has a jurisdictional responsibility to determine whether a previous claim is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnet v Brown, 83 F.3d 1380 (Fed. Cir. 1996). Claims to Reopen The Veteran seeks to reopen his claims of service connection for a kidney disorder and hypertension. Kidney Disorder The Veteran’s claim for a kidney disorder was originally denied in a May 2003 rating decision because the evidence did not reflect that the Veteran’s kidney cancer was related to service. An October 2011 rating decision reopened the claim, but denied the claim on its merits as the evidence continued to show the condition was not incurred in or aggravated by service. Most recently an October 2016 rating decision declined to reopen the claim as new and material evidence had not been submitted. The question before the Board is whether new and material evidence has been submitted to reopen the claim. At the October 2020 videoconference hearing, the Veteran raised a theory that his kidney disorder is secondary to his service-connected diabetes mellitus type II. A new theory of causation for the same disease or injury that was the subject of a previously denied claim by the Board cannot be the basis to reopen the claim under 38 U.S.C. § 7105 (c). However, if the evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, then the VA must reopen the Veteran’s claim under § 5108. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In a March 2020 VA treatment note, the Veteran’s provider noted that the Veteran had fluctuations in renal failure which required an alteration in his diabetes medication. This suggests that the Veteran’s diabetes medication affects his kidney disorder. Accordingly, the Board finds that the new theory of entitlement and evidence added to the record since October 2016, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim on a secondary basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. Hypertension The Veteran’s claim of service connection for hypertension was previously denied in an October 2011 rating decision because there was no evidence that the Veteran’s hypertension was incurred in or caused by service or manifested to a compensable degree within one year following separation from service. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the October 2011 rating decision, the NAS has updated their study again to now conclude that there is “sufficient” evidence of an association between exposure to Agent Orange and hypertension. See Institute of Medicine the National Academies, Veterans and Agent Orange: Update 11 (2018). This evidence is neither cumulative nor redundant of the evidence of record at the time of the October 2011 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 110. De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Whether new and material evidence has been received to reopen a claim of service connection for a prostate condition, to include as due to exposure to herbicide is remanded. Regarding the Veteran’s claim to reopen a claim of service connection for a prostate condition, further clarification is necessary to assess the full history of the Veteran’s prostate disabilities. A January 2019 VA treatment note indicates the Veteran previously had a prostatectomy for prostate cancer, however this is otherwise unsupported by the record, and the Veteran did not testify in October 2020 that he had a history of prostate cancer. Accordingly, records of all treatment for any prostate disorder since service, to include prostate cancer, must be sought on remand. Entitlement to service connection for a kidney disorder, to include as secondary to service-connected diabetes mellitus type II and/or as due to exposure to herbicides is remanded. Further development of the record is needed prior to a de novo consideration of the Veteran’s claim for kidney disorder. The Board cannot make a fully-informed decision on the issue of a kidney disorder, to include residuals of kidney cancer because no VA examiner has opined whether his kidney disorder is caused or aggravated by his service-connected diabetes mellitus type II. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II and/or as due to exposure to herbicides is remanded. Further development of the record is needed prior to a de novo consideration of the Veteran’s claim for hypertension. The claim must be remanded for a medical opinion. 38 C.F.R. § 3.159 (c)(4). The September 2018 VA examiner provided a negative opinion on secondary service connection because the Veteran’s hypertension was diagnosed before his service-connected diabetes mellitus; however, the timing of the diagnoses does not necessarily preclude a grant of secondary service connection. The opinion on remand must also consider whether the Veteran’s hypertension is directly related to service, to include exposure to herbicides, or aggravated by his service-connected diabetes mellitus. Additionally, on remand, a new opinion is necessary to address the NAS study. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is remanded. At the October 2020 videoconference hearing, the Veteran testified that his diabetes mellitus had increased in severity since the Veteran was last examined by VA in September 2018. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his diabetes mellitus. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any hypertension, kidney, or prostate complaints since service not already associated with the record, to specifically include any treatment for prostate cancer, and any treatment for diabetes mellitus type II since July 2018.  After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since May 2020. 2. After the completion of the above, obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from the examiner who provided the September 2018 VA kidney examination, (or from another appropriate provider if the September 2018 VA examiner is unavailable). Copies of all pertinent records must be made available to the examiner for review. Based on the record, the examiner should provide an opinion to the following: (a.) Identify all diagnosed kidney disorders, to include renal failure and all residuals of kidney cancer. (b.) For each diagnosed kidney disorder, is it at least as likely as not related to an in-service injury, event, or disease, to include his presumed exposure to herbicides? Why or why not? The examiner is advised that, although VA has not determined that kidney disorders other than cancer qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service. Instead, the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran’s diagnosed kidney disorders are due to such exposure. (c.) If the answer to (b.) is no, for each diagnosed kidney disorder, is it at least as likely as not is (i) caused or (ii) aggravated by (defined as any increase in disability) his service-connected diabetes mellitus type II? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.   3. After the completion of (1), obtain an opinion from an appropriate examiner on the likely etiology of the Veteran’s hypertension (with examination or telehealth interview if deemed necessary by the provider). Copies of all pertinent records must be made available to the examiner for review. Based on the record, the examiner should provide an opinion to the following: (a.) Is it at least as likely as not that the Veteran’s diagnosed hypertension had its onset in service, manifested within one year of separation from service in September 1972, or is otherwise related to any incident of the Veteran’s active duty service, specifically to include due to herbicide exposure? Why or why not? In providing the opinion, the examiner must specifically address the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2018, which stated that there was “sufficient” evidence of an association between hypertension and herbicide exposure. The examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran’s presumed Agent Orange exposure and other relevant factors. Although VA has not determined that hypertension qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service. Instead the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran’s hypertension is due to such exposure. (b.) If the answer to (a) is no, is it at least as likely as not that any of the Veteran’s hypertension is caused or aggravated (defined as any increase in disability) by his service-connected diabetes mellitus? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.   4. After completion of (1), schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus type II. 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. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.