Citation Nr: 21009516 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-14 697 DATE: February 22, 2021 REMANDED Entitlement to service connection for neoplasm of the kidney, to include as due to environmental hazard exposure in Southwest Asia, and to include as secondary to service-connected fibromyalgia, is remanded. Entitlement to service connection for diabetic nephropathy and renal dysfunction, to include as due to environmental hazard exposure in Southwest Asia, and to include as secondary to service-connected fibromyalgia, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to July 1991, to include service in Southwest Asia. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As noted previously, the record reflects that the Veteran submitted in March 2019 an invalid VA Form 20-0996 Request for Higher-Level Review. In this regard, the January 2019 rating decision was not a rapid appeals modernization program (RAMP) rating decision, and opt-in to the appeals modernization act (AMA) can only occur after a statement of the case (SOC) is issued. Therefore, the appeal will be addressed in the appeal system (legacy) in place prior to enactment of the modernized review system. 38 C.F.R. § 19.2 (d)). This case was most recently before the Board in July 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. The Board acknowledges that the November 2020 supplemental statement of the case listed entitlement to service connection for adenocarcinoma of the lung, to include as due to environmental hazard exposure in Southwest Asia. However, on the same day, the RO issued a rating decision granting service connection for COPD as a residual of lung cancer caused by depleted uranium and service connection for a surgical scar from lung cancer surgery. As such, the Board finds that this is a full grant of the benefits sought on appeal and the issue of entitlement to service connection for adenocarcinoma of the lung is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). 1. Entitlement to service connection for neoplasm of the kidney, to include as due to environmental hazard exposure in Southwest Asia, and to include as secondary to service-connected fibromyalgia, is remanded. 2. Entitlement to service connection for diabetic nephropathy and renal dysfunction, to include as due to environmental hazard exposure in Southwest Asia, and to include as secondary to service-connected fibromyalgia, is remanded. The Veteran seeks service connection for neoplasm of the kidney and diabetic nephropathy and renal dysfunction, to include as due to his service in Southwest Asia. Additionally, the Veteran’s representative asserts that the claimed conditions were caused or aggravated by his service-connected fibromyalgia. See Appellate Brief, February 8, 2021. Initially, the Board notes that service connection is currently in effect for fibromyalgia. As noted above, the claims were most recently before the Board in July 2020, when the matters were remanded to the AOJ for further development. Specifically, the July 2020 Board directed the AOJ to afford the Veteran an additional VA examinations for his claims. The July 2020 Board found that the October 2018 and January 2019 VA examinations were inadequate. In this regard, the July 2020 Board found the October 2018 and January 2019 VA medical opinions incomplete as they failed to address the Veteran’s contentions that his disabilities were also as a result of exposure to depleted uranium, burn pits, and particles from oil well fires. See September 2012 VA Form 21-526. Moreover, the VA medical opinions failed to adequately discuss the relevant evidence nor provide supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, supra. Moreover, the Veteran seems to assert that his claimed disorders are as a result of receiving the Anthrax vaccine during active service. See February 1996 correspondence; to which the VA medical opinions failed to address altogether. In its remand directives, the July 2020 Board directed the examiner to provide opinions as to whether it at least as likely as not (50 percent or greater probability) that the Veteran’s claimed conditions had its onset during any period of service, or is otherwise related to such period of service, to include service in Southwest Asia; the examiner was directed to discuss the significance, if any, of the Veteran’s reports of exposure to depleted uranium, burn pits, particles from oil well fires and the anthrax vaccination; and the examiner was directed that in offering such opinions, the examiner must provide a complete rationale for all opinions and conclusions reached. The Veteran was afforded the VA examinations in November 2020. At that time, the examiner found, in relevant part, that the Veteran’s neoplasm of the kidney and diabetic neuropathy and renal dysfunction were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted the Veteran was exposed to depleted uranium in Southwest Asia, and found that medical literature supported a link between such exposure and lung cancer; but the literature did not support the premise that the depleted uranium leads to renal dysfunction or renal cancer. The examiner then noted that there was nothing in the pertinent records about kidney dysfunction or kidney neoplasm to suggest that they started while on active duty. Therefore, the examiner opined it was less than 50 percent probability that any of the claimed conditions started while on active duty. The Board finds the November 2020 VA medical opinions fail to address the Veteran’s contentions that his disabilities were also as a result of exposure to burn pits, and particles from oil well fires. See September 2012 VA Form 21-526. Moreover, the VA medical opinions failed to adequately discuss the relevant evidence nor provide supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, supra. Moreover, the Veteran seems to assert that his claimed disorders are as a result of receiving the Anthrax vaccine during active service. See February 1996 correspondence; to which the VA medical opinions, again, failed to address altogether. Moreover, the Board notes that the Veteran submitted a private etiology opinion in September 2020 from Dr. N.M. In that opinion, Dr. N.M. opined that given the Veteran’s history of exposure to known carcinogens during the Gulf War, it is “quite likely that these exposures have contributed to the development of bilateral kidney cancer.” However, the Board finds the September 2020 private opinion inadequate to decide the claim as the opinion failed to adequately discuss the relevant evidence nor provide supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, supra. Rather, the opinion provides a mere conclusory statement that the Veteran’s disorders are related to his active service. Additionally, the Board notes that in a February 2021 appellate brief, the Veteran’s representative raises a new contention of entitlement. Namely, that the claimed conditions are secondary to service-connected fibromyalgia. The November 2020 VA medical opinions failed to address the September 2020 private opinion of record, and did not adequately reconcile the conflicting opinions. Additionally, a new opinion is warranted to address the Veteran’s new contention that his adenocarcinoma of the lung, neoplasm of the kidney, and diabetic neuropathy and renal dysfunction are proximately due to, or aggravated by, his service-connected fibromyalgia. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D’Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to afford the Veteran an additional VA examinations that complies with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded appropriate VA examinations to determine the etiology of his claimed neoplasm of the kidney and diabetic neuropathy and renal dysfunction. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran’s neoplasm of the kidney and diabetic neuropathy and renal dysfunction had its onset during any period of service, or is otherwise related to such period of service, to include service in Southwest Asia? The examiner should discuss the significance, if any, of the Veteran’s reports of exposure to depleted uranium, burn pits, particles from oil well fires and the anthrax vaccination. Is at least as likely as not (50 percent or greater probability) that the Veteran’s neoplasm of the kidney and diabetic neuropathy and renal dysfunction was caused or aggravated by his service-connected fibromyalgia? IN OFFERING SUCH OPINIONS, THE EXAMINER MUST PROVIDE A COMPLETE RATIONALE FOR ALL OPINIONS AND CONCLUSIONS REACHED. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.