Citation Nr: 21074197 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-50 502 DATE: December 14, 2021 REMAND Entitlement to service connection for renal cancer, to include as due to herbicide exposure, is remanded. Entitlement to an initial evaluation in excess of 60 percent prior to April 15, 2013; in excess of 30 percent for the period from April 15, 2013, to May 21, 2014; and in excess of 60 percent from May 21, 2014 for coronary artery disease (CAD) status post myocardial infarction is remanded. REASONS FOR REMAND The Veteran served in active duty in the Air Force from December 1964 to May 1967. The Veteran died in October 2015 while the above claim was pending. In a May 2017 letter, VA recognized the appellant, the Veteran's surviving spouse, as a valid substituted claimant in place of the Veteran for the issues on appeal. Thus, the appellant has been substituted as the claimant for the purposes of all claims that were pending on the date of the Veteran's death. The issues on appeal have been recharacterized on the title page to reflect substitution. This matter is on appeal from an August 2013 rating decision, which granted service connection for CAD at 10 percent, effective July 3, 2011; 60 percent, effective March 20, 2012; and 30 percent, effective April 15, 2013. The rating decision also denied the Veteran's service connection claim for renal cancer, to include as due to herbicide exposure. During the pendency of the appeal, a September 2017 rating decision by the agency of original jurisdiction (AOJ) granted an increased rating of 60 percent, effective July 3, 2011 to April 15, 2013, for the Veteran's CAD, as no evidence in the record prior to March 20, 2012 showed a left ventricular ejection fraction (LVEF) above 50 percent. The 30 percent evaluation for the period from April 15, 2013 to May 21, 2014 was confirmed. The evaluation was again increased to 60 percent from May 21, 2014, based on an echocardiogram that showed an LVEF of 50 percent. As the September 2017 rating decision did not grant the maximum benefits for the entire appeal period, beginning July 3, 2011, this period remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, the issue of an increased rating for CAD remains on appeal and has been recharacterized to reflect the staged ratings as entitlement to an initial evaluation in excess of 60 percent from July 3, 2011; and in excess of 30 percent from April 15, 2013, and in excess of 60 percent from May 21, 2014. See Hart v. Mansfield, 21 Vet. App. 505 (2008). Now the matters before the Board. Regrettably, the Board finds that that more development is necessary before final adjudication of the appellant's appeal. 1. Service connection for renal cancer, to include as due to herbicide exposure The appellant is seeking entitlement to service connection for renal cancer that she believes is due to the Veteran's military service, to include is exposure to Agent Orange while in Thailand. The Board parenthetically notes the appelant's argument that the Veteran should be entitled to cosndueration under the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act)as she believes his ship passed within the inland waterways. See June 2020 Correspondence. However, the Veteran's exposure to Agent Orange has been conceded and the location of the exposure does not change the list of diseases entitled to presumptive service connection. Regarding the Veteran's renal cancer disability claim, although VA conceded exposure to the herbicide Agent Orange when service connection for the Veteran's CAD was granted, the applicable law does not include kidney cancer as a condition for which presumptive service connection may be granted. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) (6), 3.309(e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed due to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of the evidentiary record reflects the Veteran's diagnosis of metastatic kidney cancer. The record also reflects the appellant, through her representative, asserted that a known risk factor for renal cancer is exposure to herbicides, to include the specific ingredients in Agent Orange, and submitted supporting medical evidence. However, VA has not obtained an examination or medical opinion on whether the Veteran's kidney cancer is due to herbicide exposure. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4); See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Accordingly, the Board finds that a VA medical opinion, based on consideration of the documented medical history and lay assertions of record, is needed to resolve the claim for entitlement to service connection for a renal cancer disability, to include as secondary to herbicide exposure. See 38 U.S.C. § 5103A (d) (2), 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to an initial evaluation in excess of 60 percent, prior to April 15, 2013; in excess of 30 percent for the period from April 15, 2013 to May 21, 2014; and in excess of 60 percent from May 21, 2014 for coronary artery disease Regarding the initial increased rating claim for CAD, the Board notes that further development and adjudication of the Veteran's service connection claim for kidney cancer may provide evidence in support of the increased rating claim. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). Specifically, the August 2013 VA examiner concluded that the Veteran's ejection fraction of 55-60 percent was more predictive of his cardiac status than the verbal METs level of 1-3 due to significant comorbid conditions. The examiner indicated the METs level was attributed solely to fatigue and did not identify the comorbid conditions or delineate the symptoms attributed to the cardiac disability. Thereafter, the Veteran asserted that the small nodes in his lungs due to metastatic kidney cancer were not enough to cause the shortness of breath he felt after climbing three steps or walking very short distances. See Veteran's October 2013 Correspondence. The Board finds the symptomology due to the Veteran's cardiac disability is unclear, and it would be inappropriate at this juncture to enter a final determination on the matter as the issue is inextricably intertwined with the remanded claim. Therefore, a VA addendum medical must be obtained. The matters are REMANDED for the following action: 1. The AOJ should schedule request a speculative VA examination to determine the nature and etiology of his kidney cancer disability. The evidentiary record, including a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the requested examination. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any kidney cancer disability had its onset during or is otherwise related to the Veteran's active duty service, to include as due to exposure to Agent Orange in Thailand. The examiner should specifically consider and address the assertions that Veteran's medical history did not include risk factors such as smoking or abnormal drug use, but was positive for exposure to exposure herbicides used in Thailand that contained 2, 4-D, 2, 4, 5-T. See Representative's April 2018 Appeal Statement (VA Form 646), to include medical evidence from Institute of Medicine (NCBI Bookshelf), American Cancer Society Kidney Cancer, and Mayo Clinic Kidney Cancer. The examiner must also address the April 2018 medical treatise information in the claims file showing a correlation between Agent Orange exposure and cancers. The examiner is advised that the Veteran's lay statements must be specifically acknowledged and considered in formulating any opinion, as he is competent to report symptoms and history of his disability, and if any such report is rejected reasons for such must be provided. The examiner should provide a complete rationale for any opinion provided. 2. Then, the file should be forwarded to an appropriate examiner for a VA addendum medical opinion. The evidentiary record, including a copy of this Remand, must be made available to and reviewed by the examiner, who is asked to provide clarification as to the following: Identify whether the Veteran's CAD had any comorbid disabilities that resulted in symptoms which affected the interview based METs test during the August 2013 VA examination. If so, the examiner should clearly identify the symptoms due to each diagnosis that resulted in the Veteran's METs of 1-3. Also, if any of the symptoms overlap, the examiner is asked to provide the degree, if possible. Finally, the examiner is asked to opine whether the METs level at the August 2013 VA examination or the April 15, 2013 echocardiogram is more predictive of the Veteran's disability due solely to CAD. In offering any opinion, the examiner must consider the full record, to include the lay statements in support of the Veteran's claim. The examiner should also reconcile any prior report, if necessary. If the VA examiner is unable to render any requested opinion, such should be stated with reasons. A complete rationale for any opinions offered should be provided. 3. 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 appellant and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.