Citation Nr: 21072323 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-25 541 DATE: December 2, 2021 REMANDED Service connection for a kidney disorder, including kidney cancer, is remanded. Service connection for a lung disorder, including lung nodule, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1966 to January 1968. These matters have a long history before both the Board of Veterans' Appeals (Board) and Regional Offices (RO) of the Department of Veterans Affairs (VA). Of most importance, during the course of this appeal, the Veteran offered relevant testimony during three hearings (in October 2016, April 2018, and February 2020). Transcripts of these proceedings have been associated with the record. In a May 2021 decision and remand, a panel of three judges (those who conducted the Veteran's hearings) granted the Veteran's claim for service connection for diabetes and remanded the matters listed above. Importantly, given the previous hearings, any decision in this case must be signed by a panel of the VLJs who conducted those hearings. For the reasons subsequently described, however, this case must be remanded. As a remand is not a final decision of the Board, this case is not being issued by a panel. Upon completion of all development, if the matter is returned to the Board, any decision entered will be reviewed by a panel of three VLJs. Turning to the reasons for remand here, the Board remanded the Veteran's claims for service connection for additional development in May 2021. Specifically, the Board sought opinions as to whether the Veteran's claimed disabilities were related to his active service, to include his exposure to herbicide agents (the fact of which the Board had conceded in its previous decision and remand). Although the requested opinions were obtained in August 2021, they are wholly inadequate upon which to adjudicate the merits of these appeals. Critically, the negative opinions are predicated solely on the basis that the claimed disorders are not included on VA's list of presumptive conditions related to herbicide agent exposure. Relevant case law has long provided that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). On remand, adequate opinions that address whether the Veteran's claimed disabilities are related to his active service, to include his herbicide agent exposure, must be obtained. The matters are REMANDED for the following action: Obtain an opinion addressing the questions below. If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate. Schedule an in-person examination only if deemed necessary to answer the questions below. The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred. In particular, the examiner should offer opinions as to the following: (1) For each current kidney/lung disorder, opine as to whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including in-service exposure to herbicide agents at Ft. Detrick? The examiner is advised that the Veteran's exposure has been conceded. The examiner must also explicitly address the October 2012 private treatment letter suggestive of a nexus in this case. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale must be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In this respect, the examiner is advised that the absence of the claimed conditions from VA's presumptive list does not automatically preclude the finding of a nexus in specific cases. Instead, the examiner must consider all pertinent evidence and offer an opinion as to whether the Veteran's claimed disorders are due to such exposure. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.