Citation Nr: 21074926 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-45 842 DATE: December 16, 2021 REMANDED Entitlement to service connection for a prostate disability, to include as due to herbicide agent exposure, and/or as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to service connection for a kidney disability, to include as due to herbicide agent exposure, and/or as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to December 1967. He died in August 2016. The appellant is the Veteran's surviving spouse who has been substituted as the claimant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In April 2021, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to service connection for a prostate disability is remanded. 2. Entitlement to service connection for a kidney disability is remanded. Another remand is required as there has not been substantial compliance with the directives of the April 2021 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). In this regard, the April 2021 remand directed the RO obtain an opinion addressing the nature and etiology of the Veteran's prostate and kidney disabilities. The examiner was specifically directed to address whether any disability was caused by the Veteran's herbicide exposure or was caused or aggravated by his service-connected diabetes mellitus, type II. The July 2021 VA medical opinions provided negative nexus opinions. In addressing whether the Veteran's disabilities were related to his conceded herbicide exposure, the examiner stated that benign prostatic hypertrophy and obstructive nephropathy have not been associated with herbicide exposure. In addressing whether these disabilities were secondary to the Veteran's diabetes mellitus, the examiner's rationale was limited to a finding that the record did not reflect diabetic nephropathy. Finally, the Board notes that the examiner did not provide an opinion addressing aggravation. Stegall, 11 Vet. App. 268. The Board finds that the July 2021 VA opinions are inadequate for adjudicative purposes. Specifically, the examiner merely stated that the Veteran's disabilities have not been associated with herbicide exposure, however the presumptive regulations do not preclude a claimant from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, the examiner did not provide a rationale for why the Veteran's disabilities were not secondary to his service-connected diabetes mellitus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not from the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that "[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Based on the inadequacies of the VA medical opinions, the Board finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for an addendum VA opinion. The matters are REMANDED for the following action: 1. Refer the claims file to an appropriate medical professional for an addendum opinion. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the opinion. Following a review of the claims file, the examiner should provide the following opinions: Kidney Disability (a) Identify, by diagnosis, all kidney disabilities found to be present prior to the Veteran's death. (b) For each kidney disability found, opine whether it is at least as likely as not (50 percent probability or greater) related to the Veteran's in-service exposure to herbicide agents. * The examiner is advised that a negative opinion cannot be based solely on the fact that the identified kidney disability is not on the list of diseases that are presumptively associated with herbicide exposure. (c) Opine whether any identified kidney disability was at least as likely as not (50 percent probability or greater) caused by his service-connected diabetes mellitus, type II, to include any medications prescribed. (d) Opine whether any identified kidney disability was at least as likely as not (50 percent probability or greater) aggravated by his service-connected diabetes mellitus, type II, to include any medications prescribed. * The examiner is advised that a "permanent worsening" is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. Prostate Disability (a) Identify, by diagnosis, all prostate disabilities found to be present prior to the Veteran's death. (b) For each prostate disability found, opine whether it is at least as likely as not (50 percent probability or greater) related to the Veteran's in-service exposure to herbicide agents. * The examiner is advised that a negative opinion cannot be based solely on the fact that the identified prostate disability is not on the list of diseases that are presumptively associated with herbicide exposure. (c) Opine whether any identified prostate disability was at least as likely as not (50 percent probability or greater) caused by his service-connected diabetes mellitus, type II, to include any medications prescribed. (d) Opine whether any identified prostate disability was at least as likely as not (50 percent probability or greater) aggravated by his service-connected diabetes mellitus, type II, to include any medications prescribed. * The examiner is advised that a "permanent worsening" is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. A complete rationale must be provided for all opinions and conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.