Citation Nr: 21068262 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 12-24 634 DATE: November 9, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for renal cell carcinoma residuals status postoperative left nephrectomy, to include as due to in-service herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran had active service from August 1961 to May 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision. In May 2017, the Veteran testified at a Board hearing at the Agency of Original Jurisdiction (AOJ) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. These matters have a lengthy procedural history that has been outlined in detail in prior Board decisions. Most recently, the appeal was before the Board in May of 2021. At that time, this claim was remanded in order to further develop the Veteran's claims, to specifically include obtaining new VA opinions. The case has now been returned to the Board for further appellate action. Unfortunately, an additional remand is warranted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to service connection for hypertension, and for renal cell carcinoma residuals status postoperative left nephrectomy, is remanded. In October of 2021, the Veteran asserted, via his representative, that "it is requested that new C&P exams be performed to specifically account for the arguments raised in the November 2020 brief submitted by [the Veteran]. The VA has not responded to any of the arguments raised in that document yet continues to deny a service connection for the Veteran's condition." Notably, this document was submitted in reference to an unrelated issue. However, assertions were made within it such as "[the September 2019] examination was inadequate because it wrongly said that there is no medical literature to support a connection between diabetes and RCC. There is, in fact, a large amount of literature to support this connection." Unfortunately, the Board observes that the entirety of the Veteran's arguments and individual circumstances have not yet been accurately considered by VA examiners in opining in regard to the etiology of his asserted conditions. For example, in addition to the above-mentioned asserted error within the September 2019 examination report, the September 2021 examiner stated that "I have considered the private medical opinions that were offered in 2017 regarding this claimant's renal cell carcinoma" but did not acknowledge the private opinion accompanying the November 2020 appellate brief. In addition, that examiner noted that "the incidence of renal cell carcinoma (RCC), the most common form of kidney cancer, has been steadily increasing in the United States for several decades (Noone et al. 2018; Chow et al. 2018). In addition to male sex, older age, black or African American race, and family history/genetic susceptibility, established risk factors include obesity, hypertension, and cigarette smoking (Chow et al. 2018)." The VA examiner stated in providing a negative opinion that "findings reviewed supported that cancers metastasized to the lung, which is evident, but not causal of the original diagnosis of renal cancer. Furthermore, we must account for other risk factors such as overweight, hypertension, genetics and history of farm work, as several case studies show an association with renal cell carcinoma in agricultural work as well, in this claimant." Notably, the Board observes that this examiner seems to offer as support the Veteran's asserted "genetics" in regard to the above, which may be a reference to the purported risk factor of "black or African American race". However, the Veteran's service treatment records, for example, list his race as "Caucasian", indicating that this may not be a factually accurate premise. If the examiner is referring to some other genetic risk factor that the Veteran has, then this has not been adequately explained. As such, the Board cannot make a fully-informed decision until the case is remanded so that an addendum opinion may be obtained from a VA clinician that addresses and clarifies the evidence in this case. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The September 2021 VA opinion regarding hypertension is unfortunately similarly flawed. For example, the examiner noted that "[t]he claimant has a history of being overweight documented at the time of enlistment and marks YES to high or low blood pressure without explanation. There is elevated blood pressure at separation, but not diagnostic of hypertension at that time." However, the examiner did not explain why this "elevated blood pressure at separation" was apparently "not diagnostic of hypertension at that time" and why that is relevant in regard to the question of an in-service incident relating to his current condition. Further, the examiner stated that "[w]hile there are studies that support an association of hypertension with exposure to herbicides, there has not been established causal relationship. There have been studies reviewed that showed increased incidence of hypertension reported with chemical exposure, but again, these studies did not show that the chemical exposure was causal to the development of hypertension." However, the examiner did not explain why this "increased incidence of hypertension reported with chemical exposure" does not in fact "show that the chemical exposure was causal to the development of hypertension", especially in lieu of the conclusions reached by the National Academies of Sciences, Engineering, and Medicine that there is now sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. See http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. It was further noted by the examiner that "[t]he claimant developed hypertension in adulthood with a history of weight issues documented since early adulthood. The claimant has documented active service and herbicide exposure reported. The claimant occupational history includes farming, real estate and accounting. The research has inherent flaws that do not account for the occupation or residential exposures of the participants." Even if "the research has inherent flaws that do not account for the occupation or residential exposures of the participants", that does not negate the possibility of the in-service herbicide agent exposure conceded in this case being an exposure that caused or contributed to this Veteran's hypertension. Given the foregoing, new VA opinions are needed. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate VA clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand, and it should be confirmed that such records were reviewed. If deemed necessary by the clinician in order to provide the requested opinion, schedule a VA examination of the Veteran. Following a review of the evidence of record, to include the Veteran's lay statements and with particular attention to the aforementioned issues with prior VA opinions and the arguments made in the November 2020 appellate brief, the clinician should answer the following for the Veteran's claimed (i) hypertension and (ii) renal cell carcinoma residuals: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury, to include conceded herbicide agent exposure. The examiner must discuss and acknowledge the conclusions reached by the National Academies of Sciences, Engineering, and Medicine that there is now sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. See http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition was manifested within one year of his separation from active service. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition is (i) proximately due to OR is (ii) aggravated beyond its natural progression by his service-connected diabetes mellitus. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. Aggravation is defined as a worsening beyond the natural progression of the disease. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. In doing so, the examiner should acknowledge, discuss, and reconcile to the extent possible the findings in the service treatment records, post-service VA and private treatment records, private medical opinions, VA examination reports/medical opinions, and the voluminous medical treatise evidence associated with the record. A full rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. The examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. If the benefits sought remain denied, issue the Veteran and his representative a (SSOC) and provide a reasonable opportunity to respond before returning these matters to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.