Citation Nr: 21069634 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 11-32 169 DATE: November 19, 2021 REMANDED Entitlement to service connection for a low white blood cell count disability, to include as result of herbicide exposure is remanded. Entitlement to service connection for a skin disability, to include as result of herbicide exposure is remanded. Entitlement to service connection for colon polyps, to include as result of herbicide exposure is remanded. Entitlement to service connection for a pericardial cyst, to include as result of herbicide exposure is remanded. Entitlement to service connection for a prostate disability, to include as result of herbicide exposure is remanded. Entitlement to service connection for a respiratory/lung disability, to include as result of herbicide exposure is remanded. Entitlement to service connection for a respiratory/lung disability, to include as result of herbicide exposure is remanded. Entitlement to service connection for a bilateral eye disability, to include as result of herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to April 1969. The Veteran served in Vietnam from June 1967 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the issue of entitlement to service connection for a bilateral eye disability for additional development. The Board also denied the Veteran's claims for entitlement to service connection for low white blood cell count, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court vacated and remanded the Board's decision for compliance with the instructions in the Joint Motion. In March 2021, the Board remanded the issues of entitlement to service connection for a low white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability for additional development. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. Regarding the Veteran's claims for entitlement to service connection for a low white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability, the Court in its September 2020 Joint Motion for Remand noted that the Board relied on an October 2018 VA examination report which concluded that the none of the Veteran's claims were related to service including exposure to tactical herbicides (commonly referred to Agent Orange). The Joint Motion found that the VA examination was confusing and conclusionary as the examiner seemed to indicate both an immediate effect after contact with Agent Orange but also stated that an 11-to-15-year half-life for Agent Orange. Further, to the extent the VA examiner relied on a 11-to-15-year half-life for Agent Orange, the opinion failed to explain the significance of the amount of Agent Orange in one's system or the applicability of this information to Veteran's specific claims. In conjunction with the September 2020 Joint Motion for Remand, the Board in March 2021 remanded these issues for new VA examinations to specifically address whether any of the Veteran's disabilities were related to service including exposure to tactical herbicides including Agent Orange. In its remand, the Board instructed the examiner to provide rationale for all opinions expressed. Per the March 2021 Board remand instructions, the Veteran underwent VA examinations for his claimed white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability in June 2021. The examiner opined that it was less likely than not that the Veteran's low white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability were incurred in or caused by the claimed in-service event, injury or illness. The examiner provided a rationale that he did "not have enough evidence to support any relationship between any of the Veteran's conditions or any tactical herbicides" as there was "not enough medical evidence to support a strong connection". Notably, the examiner did not provide further rationale or explain how he came to the conclusion that the Veteran's claimed disabilities were not related to service to include as due to tactical herbicides besides generally noting that there was a lack of medical evidence. As noted above, the September 2020 Joint Motion for Remand specifically found that the October 2018 VA examination was inadequate as it was conclusory and was not supported by adequate rationale. The Joint Motion specifically remanded these issues for an opinion that provided an adequate rationale. As a result, the Board finds that while the Veteran underwent VA examinations per the March 2021 Board remand instructions, there has not been "substantial compliance" with the previous Board remand instructions as adequate rationales for the medical opinions were not provided. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board must remand for a medical addendum for a full rationale for whether the claimed white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability were related to service including exposure to tactical herbicides including Agent Orange. Thus, these issues are once again being remanded to ensure compliance with the March 2021 remand directives in order to provide a medical opinion with an adequate rationale as to whether the claimed low white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability were related to service including exposure to tactical herbicides including Agent Orange. Regarding the Veteran's claim for entitlement to service connection for a bilateral eye disability, per the December 2020 Board remand, the Veteran underwent a VA examination in August 2021 where the examiner concluded that it was less likely than not that the Veteran's bilateral eye disability was incurred in or caused by the claimed in-service event, injury or illness. However, while the examiner cited the Veteran's contentions and the medical literature cited by the Veteran's representative in a December 2020 Informal Hearing Presentation, the examiner did not specifically address the medical literature and provide an adequate rationale for her opinion that the Veteran's bilateral eye disability was not related to service to include as secondary to herbicide exposure. As a result, the Board finds that while the Veteran underwent a VA examination per the December 2020 Board remand instructions, there has not been "substantial compliance" with the previous Board remand instructions as an adequate rationale for the medical opinion was not provided. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, as noted by the Veteran's representative in a November 2021 Appellant's Brief, the Veteran is also contending that the Veteran's bilateral eye disability was due to frequent upper respiratory infections during his service or as due to wind, bug bites or allergies/dermatitis during his service. The Veteran's representative noted that the Veteran currently had blepharochalasis and that some of the triggers of blepharochalasis are upper respiratory tract infections and eyelid inflammation as a result of environmental factors such as wind exposure, bug bites or allergies. The Veteran notably had "frequent upper respiratory infections" during his service and the August 2021 VA examiner did not address whether these in-service upper respiratory infections were related to the Veteran's current blepharochalasis. Under these circumstances, the Board finds that specific medical opinionsbased on consideration of the Veteran's documented medical history and assertions and supported by fully stated rationaleare needed to resolve the claim for service connection for a bilateral eye disability. See 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159(c)(4)(i) (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the claims file should be returned to the VA examiner that examined the Veteran in June 2021. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that a low white blood cell count disability, a skin disability, colon polyps, a pericardial cyst, a prostate disability and a respiratory/lung disability had their onset during service or are otherwise related to an in-service injury, event, or disease, to include tactical herbicides such as Agent Orange. In offering the opinion, the examiner is asked to consider all types of tactical herbicides and not limit any opinions exclusively to Agent Orange. The examiner is instructed to provide an opinion as to whether the disability is related to the Veteran's active military service or otherwise attributable to his presumed herbicide exposure regardless of whether the condition is a listed disease under 38 C.F.R. § 3.309 (e). The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. All opinions expressed by the examiner must be accompanied by a complete rationale. 3. After the development requested above has been completed to the extent possible, the claims file should be returned to the VA examiner that examined the Veteran in December 2020. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. Based on a detailed review of the evidence of record, the examiner must then offer an opinion on whether the Veteran's eye disability (variously diagnosed as cataracts, dry eye syndrome and macular drusen) is at least as likely as not related to the Veteran's active military service or otherwise attributable to his presumed herbicide agent exposure. The examiner should specifically address the medical literature cited by the Veteran's representative in the December 2020 Informal Hearing Presentation. The examiner should also opine as to whether the Veteran's in-service upper respiratory infections are caused or are related to the Veteran's current bilateral eye disability including blepharochalasis. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. All opinions expressed by the examiner must be accompanied by a complete rationale. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.