Citation Nr: 21071599 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-07 893 DATE: November 30, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a skin disability (originally claimed as bilateral nail fungus of the hands and feet), including due to Agent Orange exposure, is remanded. Entitlement to service connection for a tongue disability (originally claimed as tongue cancer), including due to Agent Orange exposure, is remanded. Entitlement to service connection for a kidney disability, including due to Agent Orange exposure, is remanded. Entitlement to service connection for a gastrointestinal disability (originally claimed as esophagitis, gastritis, and hiatal hernia), including due to Agent Orange exposure, is remanded. Entitlement to service connection for prostate cancer, including due to Agent Orange exposure, is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1964 to December 1965. In a November 2020 decision, the Board denied these claims, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In granting a May 2021 Joint Motion for Remand (JMR), the CAVC vacated the Board's decision denying these claims and remanded them back to the Board for further proceedings consistent with the JMR. In part, the May 2021 JMR noted that the Board had failed to determine whether a hearing was warranted concerning these claims since on his February 2016 VA Form 9, Substantive Appeal to the Board, the Veteran checked a box indicating he did not want a hearing but also checked a box conversely indicating he wanted a hearing before the Board at the local Regional Office (RO). Pursuant to the JMR citing that discrepancy, the Board sent the Veteran correspondence in September 2021 to clarify whether he wants a hearing before this Board. In October 2021, he responded, withdrawing his request for a hearing. Other development of these claims nonetheless is required before readjudicating them on appeal, so the Board is remanding them back to the RO. 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a skin disability (originally claimed as bilateral nail fungus or the hands and feet), to include as due to Agent Orange exposure, is remanded. 3. Entitlement to service connection for a tongue disability (originally claimed as tongue cancer), to include as due to Agent Orange exposure, is remanded. 4. Entitlement to service connection for a kidney disability, to include as due to Agent Orange, is remanded. 5. Entitlement to service connection for a gastrointestinal disability (originally claimed as esophagitis, gastritis, and hiatal hernia), to include as due to Agent Orange exposure, is remanded. 6. Entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure, is remanded. Following a prior July 2017 Board remand, the Veteran was afforded VA examinations in August 2017 concerning his claims for service connection for hypertension, a skin disability, a tongue disability, a kidney disability, a gastrointestinal disability, and prostate cancer. However, the Board finds these examinations inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The August 2017 VA examiner found that these conditions are unrelated to the Veteran's military service because they did not onset during his service or within a year of his separation from service. In so concluding, this commenting clinician's rationale is insufficient since it relies on the absence of service treatment records (STRs) denoting these conditions as the sole basis for disassociating them from the Veteran's service and does not reflect consideration of his lay testimony of continuing symptoms since his service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). Furthermore, this examiner did not address correspondence from the Veteran's treating physician, Dr. C.E.M.Q., positing these conditions may be related to his military service. As such, more medical comment is needed before readjudicating these claims. 7. Entitlement to service connection for a low back disability also is remanded. As indicated in the May 2021 JMR, Board initially remanded this claim in July 2017 for a VA examination and medical opinion regarding the etiology of this claimed low back disability. Specifically, in making a determination regarding this issue of causation, the remand directed that the examining clinician consider a June 2017 statement from the Veteran's physician, Dr. C.E.M.Q. In August 2017, to this end, the Veteran underwent the requested examination; however, the VA examiner did not address the June 2017 statement. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. at 270-71 (1998). As there was not acceptable substantial compliance with the Board's prior remand directive, and in accordance with Stegall, still more development of this claim is required. See also Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, these claims are again REMANDED for the following still additional development and consideration: 1. Contact the Veteran and ascertain whether there are any outstanding records pertinent to his claims, regardless of whether VA or private treatment records. If there are, obtain them following proper procedures. 38 C.F.R. § 3.159(c). Also, appropriately notify him if unable to obtain records that he identifies, in accordance with 38 C.F.R. § 3.159(e). 2. After obtaining all additional treatment or other relevant records, obtain addendum medical opinions from an appropriate clinician(s) concerning the etiologies of the Veteran's claimed hypertension, low back disability, skin disability, tongue disability, kidney disability, gastrointestinal disability, and prostate cancer. To assist in making these determinations, the claims file must be made available, and the addendum opinion should include discussion of the Veteran's documented medical history and assertions. The examiner is asked to specifically answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran's hypertension began during his active military service from January 1964 to December 1965, or within a year of his discharge so by December 1966, or is otherwise related or attributable to a disease, an event, or an injury in service, to include herbicide exposure? (b.) Is it at least as likely as not (50 percent or greater probability) the Veteran's low back disability began during his active military service from January 1964 to December 1965, or within a year of his discharge so by December 1966 (if involving arthritis), or is otherwise related to a disease, an event, or an injury in service, to include herbicide exposure? (c.) Is it at least as likely as not (50 percent or greater probability) the Veteran's skin disability, tongue disability, kidney disability, gastrointestinal disability, and/or prostate cancer began during his active military service from January 1964 to December 1965, or within a year of his discharge so by December 1966 (if, as examples, involving calculi of the kidney, cardiovascular-renal disease, nephritis, or malignant (cancerous) tumors), or is otherwise related or attributable to a disease, an event, or an injury in service, to include herbicide exposure? In responding, the examiner must address the June 2017 statement from Dr. C.E.M.Q. Rationale for all responses is essential including preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The mere absence of evidence of treatment for any of the claimed disabilities in the Veteran's STRs cannot, alone, be sufficient reason for providing a negative opinion. However, this can be one of the factors in determining whether the condition is or is not the result of his service, provided the examiner also provides explanation of why there is reasonable expectation of there being actual documentation of the condition in the STRs or relatively soon after the Veteran's service either in the way of relevant subjective complaint or objective clinical finding such as a pertinent diagnosis. The examiner also is advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically acknowledged and considered in formulating all opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.