Citation Nr: 21003782 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-20 159 DATE: January 22, 2021 REMANDED Entitlement to service connection for a renal disability, claimed as chronic renal insufficiency, chronic kidney disease, end stage renal disease, and residuals of a right renal transplant, to include as due to in-service exposure to herbicides or as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure or as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1971 to November 1972, to include service in the Republic of Korea. The record also indicates that the Veteran served in the Reserve. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board previously remanded this matter in April 2018, September 2019, December 2019, and May 2020. As a preliminary matter, the Board notes that the record reflects that the Veteran was transferred to the Reserve in November 1972. See November 1972 Department of the Army Headquarters Special Orders. Although there are service treatment records and service personnel records associated with the file revealing the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. The Board acknowledges receipt of recent opinions regarding the etiologies of the Veteran’s renal disabilities and hypertension; however, these opinions are inadequate. As for the September 2020 opinion regarding the Veteran’s renal disorder(s), the examiner simply concluded that the disorders were not caused or aggravated by the Veteran’s service-connected disabilities. The examiner providing the opinion, however, did not opine as to whether the Veteran’s renal conditions were etiologically related to his confirmed in-service exposure to herbicides. The examiner also did not discuss the Veteran’s in-service complaints of kidney trouble or address various competent lay statements submitted by the Veteran and his wife regarding the onset and continuity of symptomatology of his renal disability. The Board also acknowledges receipt of July 2020 and September 2020 opinions concerning the etiology of the Veteran’s hypertension. However, these opinions are also inadequate. The July 2020 and September 2020 opinions rely on rationale that discusses exposure to herbicides of those who served in Vietnam. In this case, the Veteran has conceded herbicide exposure based on his service in Korea, not Vietnam. Neither VA examiner addressed this pertinent fact, and thus did not adequately address whether there is an etiological relationship based on the pertinent facts in this case. As such, the Board finds that the recent opinions regarding hypertension are based on inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Additionally, the examiners did not address the Veteran’s and his wife’s competent lay statements submitted in the claims file addressing the onset and continuity of his symptomatology. Accordingly, the Board finds that addendum medical opinions as to the natures and etiologies of the Veteran’s renal condition(s) and hypertension must be obtained. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran’s Reserve service should also be obtained and associated with the claims file. 2. After completing the foregoing development, forward the claims file to an appropriate physician, who has not previously provided an opinion in this case, for an addendum opinion as to the nature and etiology of any and all renal disability/disabilities attributable to the Veteran throughout the appellate period. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. (a) The clinician should identify any and all renal condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service and/or ACDUTRA, to include confirmed in-service herbicide exposure. It is understood that renal disease and kidney disease are not on the list of diseases considered presumptively caused by exposure to herbicide agents. The Board seeks a discussion as to direct (not presumptive) causation. (c) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was either (i) caused, or (ii) aggravated by his service-connected disabilities. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to aggravation. In formulating his or her opinions, the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: • The Veteran’s service treatment records, including April 1972 complaints of kidney trouble; • The Veteran’s post-service VA medical records; • The Veteran’s post-service private medical records; and • The competent lay statements submitted by both the Veteran and his wife regarding the onset and continuity of his renal symptomatology. (d) If the clinician determines that the Veteran’s renal condition(s) is/are less likely than not due to his active duty service and/or ACDUTRA (including due to confirmed in-service herbicide exposure), or that the Veteran’s renal condition(s) is/are less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder(s). A complete rationale must be provided for all opinions and conclusions reached. 3. Forward the claims file to an appropriate physician, who has not previously provided an opinion in this case, for an addendum opinion regarding the nature and etiology of the Veteran’s hypertension. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. (a) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension manifested during, or is the result of, his active duty service and/or ACDUTRA, to include confirmed in-service herbicide exposure. It is understood that hypertension is not on the list of diseases considered presumptively caused by exposure to herbicide agents. The Board seeks a discussion as to direct (not presumptive) causation. (b) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was either (i) caused or (ii) aggravated by his service-connected disabilities. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: • The Veteran’s service treatment records, including an April 1971 Report of Medical History and all the Veteran’s in-service blood pressure readings; • The Veteran’s post-service VA medical records; • The Veteran’s post-service private medical records; and • The competent lay statements submitted by both the Veteran and his wife regarding the onset and continuity of his hypertensive symptomatology. (c) If the examiner determines it is less likely than not that the Veteran’s hypertension is due to his active duty service and/or ACDUTRA (including due to confirmed in-service herbicide exposure) or that the Veteran’s hypertension is less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused it. A complete rationale must be provided for all opinions and conclusions reached. 4. Prior to returning the claims to the Board, the RO must review all opinions obtained to ensure they comply with the above directives and undertake corrective actions if the opinions are deficient in any manner. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.