Citation Nr: 21002333 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 04-25 786 DATE: January 13, 2021 REMANDED Entitlement to service connection for hypertension, including as due to herbicide agent exposure, is remanded. Entitlement to service connection for bilateral kidney cysts, including as due to herbicide agent exposure and as secondary to service-connected diabetes mellitus, type II (diabetes), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to July 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). As pertinent to the present appeal, in a March 2015 decision, the Board remanded the issues of entitlement to service connection for hypertension and kidney cysts, entitlement to an earlier effective date for the assignment of a 60 percent rating for degenerative disc disease of the lumbosacral spine, among other issues. See March 2015 Board Decision. A July 2016 Board decision, in pertinent part, denied entitlement to service connection for hypertension on a secondary basis, but remanded the issues of entitlement to service connection for hypertension on a direct basis, entitlement to service connection for kidney cysts, and entitlement to an earlier effective date for the assignment of a 60 percent rating for degenerative disc disease of the lumbosacral spine, among other issues. See July 2016 Board Decision. The case returned to the Board in February 2018, at which time the Board, in pertinent part, denied the claims for service connection for hypertension on a direct basis, for service connection for kidney cysts, and for an earlier effective date for the degenerative disc disease of the lumbosacral spine. See February 2018 Board Decision. The Veteran appealed the portion of the Board’s decision denying these claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a September 2019 Memorandum Decision, the Court vacated the Board’s February 2018 decision denying service connection for hypertension and kidney cysts and denying an effective date earlier than November 21, 2011, for a 60 percent rating for degenerative disc disease of the lumbosacral spine and remanded the case back to the Board for further adjudication consistent with its decision. See September 2019 CAVC Memorandum Decision. The case returned to the Board in June 2020, at which time the Board again denied the claim for an effective date earlier than November 21, 2011, for a 60 percent rating for degenerative disc disease of the lumbosacral spine. The Board remanded the claims for service connection for hypertension and kidney cysts for additional development, to include for VA medical opinions addressing the likely etiology of the claimed conditions. See June 2020 Board Decision. The agency of original jurisdiction (AOJ) obtained the requested opinions in October 2020, and a November 2020 supplemental statement of the case (SSOC) continued to deny service connection for hypertension and renal cysts. The above-listed issues have thus returned to the Board. Additionally, the Board notes that the prior February 2018 Board decision remanded the issues of entitlement to increased ratings for posttraumatic stress disorder (PTSD), peripheral neuropathy of the bilateral lower extremities, and effective dates earlier than November 21, 2011 for the awards of a total disability rating based on individual unemployability (TDIU) and Dependents’ Educational Assistance (DEA) benefits, for additional development. See February 2018 Board Decision. Those matters are undergoing development by the AOJ and the issues have not yet been returned to the Board. Accordingly, the Board will not address those issues herein. Unfortunately, as will be discussed below, yet another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 1. Entitlement to service connection for hypertension, including as due to herbicide agent exposure, is remanded. As noted, the Board remanded the claim in June 2020 for the provision of a VA medical addendum report, as the medical evidence of record was inadequate to decide the claim. See June 2020 Board Remand. See also Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). See, too, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In particular, the Board instructed the AOJ to obtain an addendum opinion from an appropriate medical professional as to “whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his in-service herbicide exposure.” See June 2020 Board Decision. The Board further instructed that the examiner consider “the National Academy of Sciences, Engineering and Medicine[‘s] . . . elevation of hypertension to the ‘Sufficient Evidence’ category” of conditions associated with herbicide agent exposure. See id. (citing Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering, and Medicine (NASEM) (formerly NAS)). Notwithstanding these instructions, the September 2020 VA medical opinion, obtained pursuant to the June 2020 remand, neither considered nor addressed NASEM’s findings. See September 2020 Medical Opinion Disability Benefits Questionnaire (DBQ). Significantly, the examining VA clinician inexplicably stated that “[c]urrent medical literature shows no association or causal relationship between Agent Orange/Herbicide exposure and hypertension,” despite the Board’s direct citation to NASEM’s consensus study report finding that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. Id. See also Veterans and Agent Orange: Update 11 (2018), NASEM (detailing the breadth of scientific studies on the association between herbicide agent exposure and hypertension). In light of the foregoing, the Board finds that there has not been substantial compliance with its June 2020 remand. See Stegall, 11 Vet. App. 268; Dyment, 13 Vet. App. 146 -47. Accordingly, another remand is warranted to obtain a new medical opinion. See 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 2. Entitlement to service connection for bilateral kidney cysts, including as due to herbicide agent exposure and as secondary to service-connected diabetes, is remanded. The September 2020 VA medical opinion concerning the nature and etiology of the Veteran’s claimed kidney cysts is also inadequate. Specifically, in finding against a relationship between the Veteran’s kidney cysts and his service-connected diabetes, the VA examiner stated that “[t]here is no indication in common/current medical literature to support Diabetes Mellitus II as a potential source or causative condition for developing simple kidney/renal cysts.” See September 2020 Medical Opinion DBQ. However, in so finding, the VA examiner failed to consider or address in any way the medical treatise evidence cited by the Veteran and his representative indicating an “association of renal cysts and diabetes.” See, e.g., April 2012 Email Correspondence (citing Coralie Bingham & Andrew T. Hattersley, Renal cysts and diabetes syndrome resulting from mutations in hepatocyte nuclear factor-1β, 19 NEPHROLOGY DIALYSIS TRANSPLANTATION 2693, 2703–2708 (November 2004) (available at https://doi.org/10.1093/ndt/gfh348) for the proposition that there exists an association between diabetes and renal cysts in individuals with a certain genetic mutation); September 2010 Attorney Correspondence (enclosing an abstract of the same article). Given that this evidence appears to contradict the VA examiner’s rationale, a new medical opinion that addresses this evidence is warranted. See McCray v. Wilkie, 31 Vet. App. 243 (2019) (holding that, if a VA examiner relies on a medical treatise or literature, and there is any inconsistency within the evidence or with the conclusions drawn, the Board must address these inconsistencies). Additionally, the September 2020 VA medical opinion references the Centers for Disease Control and Prevention (CDC) Diseases & Conditions information portal for high blood pressure for the proposition that “[h]igh blood pressure and/or diabetes can lead to kidney disease.” See September 2020 Medical Opinion DBQ (citing Centers for Disease Control and Prevention, High Blood Pressure Symptoms and Causes, CDC.GOV, https://www.cdc.gov/bloodpressure/about.htm (last visited January 12, 2021)). As such, given the indication of a potential relationship between the Veteran’s kidney pathology and his hypertension, the issue of entitlement to service connection for kidney cysts is intertwined with the claim for service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Thereafter, send the claims file to an appropriate clinician(s) other than the examiner who performed the September 2020 VA hypertension and kidney examinations for addendum opinions as to the etiology of the Veteran’s hypertension, if possible. Additional examination is not required unless specifically requested by the examiner. If deemed necessary, the examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the Veteran’s full history by conducting a complete review of the claims file (including all available private and VA medical treatment records and lay statements), the examiner should provide opinions as to the following: A) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his in-service herbicide exposure. The Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide agent exposure. Nevertheless, there is a 2018 consensus study report of the National Academy of Sciences, Engineering and Medicine (NASEM) (formerly NAS) finding that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018), NASEM (available at https://www.nap.edu/download/25137) (detailing the breadth of scientific studies on the association between herbicide agent exposure and hypertension). Accordingly, the pertinent inquiry is, considering elevation of hypertension to the “Sufficient Evidence” category, what is the likelihood that this Veteran’s hypertension is related to his herbicide exposure given his medical history, family history, absence of other risk factors, etc. (B) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was either (i) caused by, or (ii) aggravated by (any worsening beyond its normal progression) any service-connected disability, to include his service-connected diabetes mellitus, type II, posttraumatic stress disorder, and/or large vessel disease manifested by coronary artery disease. In rendering these opinions, the examiner should assume that the Veteran was exposed to herbicides in service. Additionally, while the examiner is free to cite to studies by the National Academy of Sciences or any other medical treatises in rendering the opinion, the examiner may not rely solely on the fact that the Veteran’s condition is not on the presumptive list of diseases associated with herbicide exposure. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive, and should address whether there are other risk factors that might be the cause of the Veteran’s condition or whether they manifested in an unusual manner. Additionally, the examiner is asked to cite to the specific medical studies and/or treatises relied upon in formulating the requested opinion. In so doing, the examiner must consider and address NASEM’s Veterans and Agent Orange: Update 11 (2018). In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 3. Send the claims file to an appropriate clinician(s) other than the examiner who performed the September 2020 VA hypertension and kidney examinations for addendum opinions as to the etiology of the Veteran’s kidney cysts, if possible. Additional examination is not required unless specifically requested by the examiner. If deemed necessary, the examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the Veteran’s full history by conducting a complete review of the claims file (including all available private and VA medical treatment records and lay statements), the examiner should provide opinions as to the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s kidney cysts had their clinical onset during active service or are related to any in-service disease, event, or injury, to include his in-service herbicide exposure. (B) Whether it is at least as likely as not (50 percent or greater probability) that the kidney cysts were either (i) caused by, or (ii) aggravated by (any worsening beyond their normal progression) by the Veteran’s diagnosed hypertension, and/or by any service-connected condition, to include service-connected diabetes mellitus, type II and large vessel disease manifested by coronary artery disease. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Additionally, the examiner is asked to consider and address the April 2015 VA examiner’s findings that “renal cysts may be related to or associated with” diabetes mellitus, as well as his finding that the Veteran’s right renal cyst increased in size and the medical treatise evidence, discussed in detail above, cited by the Veteran and his representative indicating an “association of renal cysts and diabetes.” See, e.g., April 2012 Email Correspondence (citing Coralie Bingham & Andrew T. Hattersley, Renal cysts and diabetes syndrome resulting from mutations in hepatocyte nuclear factor-1β, 19 Nephrology Dialysis Transplantation 2693, 2703–2708 (November 2004) (available at https://doi.org/10.1093/ndt/gfh348)). In rendering these opinions, the examiner should assume that the Veteran was exposed to herbicides in service. Additionally, while the examiner is free to cite to studies by the National Academy of Sciences or any other medical treatises in rendering the opinion, the examiner may not rely solely on the fact that the Veteran’s condition is not on the presumptive list of diseases associated with herbicide exposure. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive, and should address whether there are other risk factors that might be the cause of the Veteran’s condition or whether they manifested in an unusual manner. Additionally, the examiner is asked to cite to the specific medical studies and/or treatises relied upon in formulating the requested opinion. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.