Citation Nr: 21062203 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 12-20 982A DATE: October 6, 2021 REMANDED Entitlement to service connection for nephritic syndrome membranoproliferative glomerulonephritis, also claimed as a renal condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1990 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2014 Board hearing. The hearing transcript has been associated with the claims file. In a March 2017 decision, the Board denied the Veteran's claim for entitlement to service connection for nephritic syndrome membranoproliferative glomerulonephritis, also claimed as a renal condition. In response to the March 2017 decision denying the claim, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). In March 2018, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested a vacatur and remand of the March 2017 decision addressing the claim. The Board then remanded the claim in August 2018, May 2020, and in April 2021. Pursuant to the April 2021 Remand, the Veteran was afforded a VA examination in May 2021. However, as discussed below, the Board finds the opinion rendered in connection with the claim is inadequate. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, further remand is required. Entitlement to service connection for nephritic syndrome membranoproliferative glomerulonephritis, also claimed as a renal condition is remanded. The Veteran contends that service connection is warranted for nephritic syndrome membranoproliferative glomerulonephritis. In the April 2021 Remand, the Board directed a VA examiner to opine as to whether it was at least as likely as not that the Veteran's renal disorder was related to his active service. More specifically, the Board instructed the examiner to consider and address the Veteran's reports of in-service fevers and the connection, if any, to his current renal disability; the lay statements of record regarding the Veteran's physical appearance; August 2011 and August 2014 private physicians' opinions; the June 1995 general examination; and the Veteran's claims of exposure to toxins in service. As noted above, the Veteran was afforded a VA examination in May 2021. The VA examiner, a nurse practitioner, noted that the Veteran had glomerulonephritis, which was diagnosed in 2001. The examiner opined that it was less likely than not that the Veteran's renal disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran first experienced facial swelling with proteinuria in 1999 and that he was diagnosed with membranoproliferative glomerulonephritis in 2003. The examiner also acknowledged that documents in the claims file referenced facial and acral swelling in 1994 after return from active duty and that in a June 1995 routine physical examination, there was a reference to a 1+ protein on dipstick spot urinalysis. Here, the examiner stated that this was the start of the kidneys functioning poorly. Additionally, the examiner acknowledged the Veteran's contentions that in-service exposure to toxins such as chlorine, pesticides, burning human and animal remains, etc., although speculative, are toxins have been known to contribute to kidney disease, further noting that associations exist between chronic kidney disease and both environmental agents and agents and conditions. The examiner, however, noted that there was not enough supporting evidence, profiles, and cases to show a causation between chlorine, bleach, dead bodies, body parts, dead animals, burning fecal matter, and drinking and showering in bleached water, for the diagnosis of nephritic syndrome membranoproliferative glomerulonephritis. Finally, the examiner acknowledged reviewing August 2011 and August 2014 opinions, as well as a June 1995 general examination, but concluded that it would be merely speculative to say without a questionable doubt that the chemicals caused the glomerulonephritis. The Board finds that the May 2021 VA examination is inadequate. As an initial matter, the examiner failed to address the Veteran's reports of in-service fevers and the connection, if any, to his current renal disability, as directed by the Board in the April 2021 Remand directives. Moreover, the basis for the opinion is unclear, as the examiner appears to suggest that symptomatology discovered during the June 1995 general examination was an early manifestation of the Veteran's subsequently diagnosed renal disorder. Finally, the examiner did not thoroughly explain the basis for her conclusion that a non-speculative opinion cannot be offered. In this regard, the Court in the case of Jones v. Shinseki, 23 Vet. App. 382 (2010) has concluded that it must be apparent that the inability to provide an opinion without resorting to speculation "reflect[s] the limitation of knowledge in the medical community at large" and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. Here, the rationale provided in support of the speculative opinion was that "there was not enough supporting evidence, profiles, and cases to show a causation." Yet, it is not clear that the examiner has considered all procurable and assembled data before stating that an opinion cannot be reached. As such, the Board finds that an addendum opinion must be obtained that addresses the above-noted deficiencies and fulfills the prior remand directives. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a nephrologist or another appropriate specialist regarding whether the Veteran's renal condition is at least as likely as not (i.e., a 50 percent or greater probability) related to his service. The clinician must consider the entire claims file, and address all of the following evidence: (a) Reports of in-service fevers. (b) The detailed lay statements associated with the claims file attesting to the Veteran's swollen face, hands, and feet after separation from service. (c) The August 2011 private physician's opinion. (d) The August 2014 private physician's opinion. (e) The June 1995 general examination. (f) The Veteran's claimed in-service exposure to toxins such as chlorine, bleach, iodine tablets, pesticides, dead bodies, body parts, dead animals, burning fecal matter, and drinking and showering in bleached water. The opinion expressed must be accompanied and supported by a clear, adequate, and complete medical rationale. **The examiner is reminded that a cogent rationale must be provided for each opinion proffered, to include reference to any supporting medical literature. The examiner is reminded that the absence of in-service treatment is not fatal to a Veteran's claim. ** If the examiner determines that he or she cannot opine on an issue without resort to mere speculation, he or she must clearly explain the basis for any such inability to opine. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.