Citation Nr: 21067082 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-24 865 DATE: November 3, 2021 ORDER Entitlement to service connection for hypokalemia, claimed as due to exposure to herbicide agents is denied. Entitlement to service connection for anemia, claimed as due to exposure to herbicide agents is denied. REMANDED Entitlement to service connection for a lump on head due to exposure to herbicide agents is remanded. Entitlement to service connection for a lump on neck due to exposure to herbicide agents is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran does not have hypokalemia as a currently diagnosed condition. 2. The Veteran does not have anemia as a currently diagnosed condition. CONCLUSIONS OF LAW 1. The criteria for service connection for hypokalemia, claimed as due to exposure to herbicide agents are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for anemia, claimed as due to exposure to herbicide agents are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1966 to May 1969. This appeal comes to the Board of Veterans' Appeals (Board) from two Department of Veterans Affairs (VA) rating decisions, from September 2017 and June 2018, of the Agency of Original Jurisdiction (AOJ). In September 2020, the Board remanded the Veteran's claims for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the September 2020 remand, with regard to the Veteran's claims of entitlement to service connection for hypokalemia and anemia only, there has been substantial compliance. However, with regard to the Veteran's claims for service connection for hypertension, claimed as secondary to his service-connected posttraumatic stress disorder (PTSD) and in the alternative, claimed as due to herbicide exposure; service connection for a lump on his head; and service connection for a lump on his neck, the Board finds that the AOJ failed to obtain adequate etiology opinions. As such, a further remand will be necessary to allow the Veteran to develop his claim. Service Connection 1. Entitlement to service connection for hypokalemia, claimed as due to exposure to herbicide agents 2. Entitlement to service connection for anemia, claimed as due to exposure to herbicide agents The Veteran claims that his hypokalemia and anemia are due to his military service. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran's post-service medical records show that he has a history of both hypokalemia and anemia. In June 2005 he was diagnosed with the condition, and a December 2014 medical note shows that the Veteran was not prescribed certain medication as he is "prone to ... hypokalemia." However, the Veteran's medical records show he does not currently have hypokalemia. A May 2021 VA examination showed that the condition had "resolved." In August 2021 a VA examiner noted that the Veteran's most recent bloodwork confirmed he did not have the condition. Similarly, the Veteran has a history of anemia. The Veteran's medical records show that he developed the condition in 1975 due to a now-repaired hernia, but the condition has since "resolved." In August 2021, a VA examiner noted that "there was no sign of anemia." As the Veteran does not have either hypokalemia or anemia, the first Shedden element necessary to establish service connection has not been fulfilled. The Board finds that service connection for hypokalemia, as well as service connection for anemia, is not warranted, and the Veteran's claims must be denied. With the preponderance of the evidence being against the Veteran's claim, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND 1. Entitlement to service connection for a lump on head due to exposure to herbicide agents is remanded. 2. Entitlement to service connection for a lump on neck due to exposure to herbicide agents is remanded. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. In September 2020 the Board remanded the Veteran's claims regarding his skin conditions and hypertension for additional development. Specifically, the Board directed the AOJ to obtain etiology opinions that addressed the impact, if any, of exposure to herbicide agents (such as Agent Orange) on the development of the claimed conditions. In May 2021 the Veteran was seen for a VA examination in an attempt to determine the etiology of the claimed conditions. In a June 2021 Medical Opinion Disability Benefits Questionnaire, the examiner concluded that the Veteran's conditions are "less likely than not ... incurred in or caused by" the Veteran's active duty service. The Board notes that the examiner failed to provide a rationale, only noting that the Veteran's hypertension was diagnosed 6 years after he separated from service, and that his skin conditions did not appear until "thirty eight years post his military service." In an August 2021 addendum opinion, the same examiner attempted to address the impact (if any) of the Veteran's in-service exposure to herbicide agents. However, the examiner merely repeated the Board's September 2020 remand directives without providing the necessary opinion. The Board notes that in October 2021 the Veteran's representative advanced the theory that the Veteran's hypertension may be caused by, or aggravated beyond the natural progression of the disease, by his service-connected PTSD. As there has not been a medical opinion regarding that possible theory of entitlement, the Board will direct the AOJ to conduct appropriate development. The Board finds that, as the VA examiner failed to address any potential impact of the Veteran's herbicide exposure with regard to his eventual development of hypertension and his skin conditions, the etiology opinions are wholly inadequate, and cannot be relied upon for adjudication purposes. While the Board regrets the additional delay, a further remand is necessary to allow the Veteran to fully develop his claims. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified medical professional regarding the etiology of the Veteran's claimed hypertension and skin conditions. The examiner shall be provided with a copy of the Veteran's claims file, as well as these remand directives. The examiner must provide the following opinions: (a.) Whether it is at least as likely as not (approximately 50 percent chance or greater) that the Veteran's hypertension is caused by, or due to, his in-service exposure to herbicide agents. The examiner must specifically address the impact, if any, of being exposed to Agent Orange; and, (b.) Whether it is at least as likely as not (approximately 50 percent chance or greater) that the Veteran's hypertension is caused by his service-connected posttraumatic stress disorder; and, (c.) Whether it is at least as likely as not (approximately 50 percent chance or greater) that the Veteran's hypertension has been aggravated by his service-connected posttraumatic stress disorder; and, (d.) Whether it is at least as likely as not (approximately 50 percent chance or greater) that the Veteran's skin condition, diagnosed as a "benign tumor of the neck," is caused by, or otherwise due to, his military service. The examiner must specifically address the impact, if any, of being exposed to herbicide agents; and, (e.) Whether it is at least as likely as not (approximately 50 percent chance or greater) that the Veteran's skin condition of the head is caused by, or otherwise due to, his military service. The examiner must specifically address the impact, if any, of being exposed to herbicide agents. (Continued on the next page) The examiner must provide a complete rationale for the required opinions. If the examiner determines that they are unable to provide the necessary opinions without an in-person examination of the Veteran, the AOJ shall schedule the necessary examination for a date and time convenient to the Veteran. If the examiner is unable to provide the necessary opinions without resorting to mere speculation, the examiner must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate 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.