Citation Nr: 21069563 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-30 860 DATE: November 18, 2021 REMANDED Service connection for a skin disability (claimed as skin cancer) is remanded. Service connection for chronic kidney disease is remanded. Service connection for blood clots of the bilateral lower extremities is remanded. Service connection for peripheral neuropathy of the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to November1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded in June 2015, November 2017, March 2020, and June 2021 for further development. Unfortunately, there has not been substantial compliance with the Board's previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although VA opinions were obtained in December 2020 and April 2021, for the reasons provided below, they are inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA has conceded his exposure to herbicide agents based on his service at Da Nang Air Base in the Republic of Vietnam. The Veteran contends that his claimed disabilities began after his service and are due to his exposure to herbicide agents. See Form 9 (October 2013). He adds that the skin disability is also related to sun exposure while in service. Here, the December 2020 VA examinations show diagnoses of peripheral neuropathy of the bilateral lower extremities, peripheral vascular disease of the bilateral lower extremities and left leg deep vein thromboses, chronic kidney disease, and benign or seborrheic keratosis (skin disability). The December 2020 VA medical opinions, regarding peripheral neuropathy, blood clots, and kidney disease, reflect that the diagnosed disabilities were less likely than not incurred in or caused by service, to include herbicide agent exposure. The rationale was that "there is no evidence in the service medical records that shows that the Veteran had..." the currently diagnosed disabilities during service. See C&P Exam (December 2020). The rationale is inadequate as an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also38C.F.R. §3.303(d) (service connection may 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). Additionally, the rationale regarding peripheral neuropathy, blood clots, and kidney disease included that there is "[i]nadequate or [i]nsufficient [e]vidence..." showing an association between the claimed disabilities and herbicide agents. See C&P Exam (December 2020). The rationale regarding seborrheic keratosis was that the "current medical literature does not support a cause and effect relationship between agent orange herbicide exposure..." and the Veteran's seborrheic keratosis. Id. In July 2021, the examiner stated that he was unable to find a medical treatise that supports a nexus between any of the disabilities in question and a particular triggering event, whether it be between herbicide exposure and a skin disability or any other disability. These rationales are also inadequate because they do not provide the Board a reasoned rationale explaining why the lack of medical literature supporting nexus is dispositive of a causal relationship between herbicide agent exposure and the claimed disabilities; or discuss facts specific to the Veteran, to include any risk factors that may contribute to the claimed disabilities. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). The Board is frustrated that it is unable to provide a timely decision to the Veteran. When discussing the nexus and if relying on medical literature, the examiner should apply the literature to the facts of the case. For illustrative purposes only, walking through an area after it was treated with agent orange as opposed to being the person that repeatedly sprayed agent orange may lead one to find a different conclusion based on scientific literature. Similarly, it may not cause one to lead to a different conclusion. The examiner may need to discuss family history, medical history, or risk factors unique to the Veteran. Nonetheless, the examiner should state why the medical literature applies or does not to the facts of this particular case (e.g., there are enough unique circumstances that the literature is inapplicable to the Veteran's case or conversely the Veteran's history falls within the confines of the sample used in the literature). To ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11Vet. App. at 271. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's skin condition, chronic kidney disease, blood clots of the bilateral lower extremities, and peripheral neuropathy of the bilateral lower extremities. The claims file, including a copy of this remand, must be made available to the clinician for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed (1) seborrheic keratosis, (2) chronic kidney disease, (3) peripheral vascular disease of the bilateral lower extremities and left leg deep vein thromboses, and (4) peripheral neuropathy of the bilateral lower extremities is related to his conceded in-service exposure to herbicides. The clinician must also opine whether it is at least as likely as not that the Veteran's seborrheic keratosis is related to sun exposure during service. The rationale for all opinions must be provided. The clinician is advised that an adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.