Citation Nr: 21010089 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-15 444A DATE: February 24, 2021 REMANDED Entitlement to service connection for hypertension to include as secondary to diabetes mellitus type II, as secondary to diabetic nephropathy, and/or herbicide exposure is remanded. Entitlement to service connection for splenectomy as secondary to diabetes mellitus type II, as secondary to hereditary spherocytosis, and/or due to herbicide exposure is remanded. Entitlement to service connection for hereditary spherocytosis (claimed as blood disorder) as secondary to splenectomy, and due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 through April 1970, to include verified service in the Republic of Vietnam from June 1968 to June 1969. He also had additional service thereafter in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the June 2011 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2018, the Board remanded this matter for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for hypertension to include as secondary to diabetes mellitus type II, as secondary to diabetic nephropathy, and/or herbicide exposure is remanded. The Veteran contends that his hypertension is the result of herbicide exposure during service. He also contends that his hypertension is due to his diabetes mellitus type II, and diabetic nephropathy. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination or obtain a medical opinion for the Veteran’s hypertension disability “when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1). The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2019, the Veteran underwent a VA examination for his hypertension. The examiner opined that is less likely than not that the Veteran's hypertension began during service, or is etiologically related to his active duty service, to include as due to herbicide agent exposure. As to the rationale, the examiner stated that hypertension is not a presumptive disease. The examiner also stated that a review of the onset and service treatment records are negative for a causal relationship for the onset of his hypertension. This medical opinion is inadequate, as it does not discuss the National Academy of Sciences (NAS) study, and simply dismisses the Veteran’s contention without providing adequate reasons. Thus, a remand is necessary to obtain an addendum opinion that addresses the NAS study and provides a clear explanation. 2. Entitlement to service connection for hereditary spherocytosis (claimed as blood disorder) as secondary to splenectomy, and due to herbicide exposure is remanded. 3. Entitlement to service connection for splenectomy as secondary to diabetes mellitus, type II and due to herbicide exposure is remanded. The Veteran contends his blood disorder and splenectomy are due to herbicide exposure during service. The Veteran contends that there is no family history of blood disease. The Veteran also contends that his blood disorder is secondary to his splenectomy and his splenectomy is secondary to his blood disorder. The March 2012 inpatient operative report noted that, the Veteran “has been evaluated by Dr. Smith and felt to have hereditary spherocytosis, and I have been asked to perform a laparoscopic splenectomy for him.” In January 2014 the Veteran underwent a VA examination for his hematologic and lymphatic conditions. The examiner noted that the Veteran had a diagnosis of splenectomy in March 2012. The Veteran reported a history of hemolytic anemia. The examiner notes that the primary hematologic or lymphatic condition is in remission. The examiner stated that the anemia has resolved post splenectomy. There is a question as to whether the Veteran’s blood disorder is hereditary or whether it is the result of or aggravated herbicide exposure, or diabetes. The January 2014 examiner stated, The Veteran has hereditary spherocytosis- which is a familial hemolytic disorder with marked heterogeneity of clinical features, ranging from an asymptomatic condition to fulminant hemolytic anemia. This condition is "the most common hereditary hemolytic anemia among people of Northern European descent" (Medscape online) and is caused by a genetic defect which causes defects in membrane proteins. There can be long periods of asymptomatic disease in chronic congenital hemolytic anemia and; for whatever reason, there may be a disruption of equilibrium that leads to loss of hemoglobin levels (he may have had this at a stable/asymptomatic level for a long time and then it became evident rather suddenly). [The Veteran] was born with this condition - it is congenital not acquired. Also, up to 25% of the cases are not related to a dominant inheritance pattern - which could explain his assertion that his parents/family members are not affected. While the examiner explained that the condition could be stable and then become “evident rather suddenly,” the examiner does not discuss the possibility that the Veteran’s service-connected diabetes caused this occurrence. In addition, the wording from the March 2012 inpatient operative report appears to be speculative. The January 2014 examiner did not directly opine whether the Veteran’s blood disorder was caused by or aggravated by his splenectomy, herbicide exposure, or diabetes. The examiner noted that the Veteran’s blood disorder resolved after the splenectomy, which requires a clarification, of how a hereditary condition can be resolved in this way, and how it does not demonstrate aggravation. The January 2014 examiner opined that the Veteran’s splenectomy is less likely than not proximately due or the result of his diabetes. However, the examiner did not provide an opinion on aggravation. A medical opinion as to secondary service connection is inadequate for the Board’s decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner’s determination that the disease or injury at issue is not “related to” the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. In June 2017, the Veteran testified at the RO hearing regarding his blood disability and splenectomy conditions. The Veteran testified that he had his spleen removed at St. Francis Hospital because of a blood disease. He testified that there is no family history of blood disease in his family. The Veteran testified that the surgeon said the Veteran’s spleen condition could be due to his exposure to herbicides while in Vietnam. The Veteran also testified that he was diagnosed with diabetes in 2002/2003 and his condition with his spleen occurred after his diagnosis. The Veteran was rushed to the hospital and was told that his blood disorder could cause the spleen issue. The Veteran was diagnosed with a blood disorder subsequent to his diagnosis of diabetes. Thus, a remand is necessary to address these contentions. The Veteran also provided treatise material regarding the blood disorder and splenectomy, that must be considered. The matter is REMANDED for the following action: 1. If possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the October 2019 medical opinion, hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should provide the following medical opinions: Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s hypertension is directly related to military service, to include as a result of exposure to herbicides while he was in Vietnam? The examiner must consider and address that in November 2018, hypertension was moved by National Academies of Sciences to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. https://www.nationalacademies.org/news/2018/11/vietnam-veterans-and-agent-orange-exposure-new-report 2. Request the Veteran to be scheduled for a new examination for his blood disorder to determine the nature and etiology of his condition. The examiner should consider and address the treatise material the Veteran submitted, and the Veteran’s contentions that he was diagnosed with diabetes prior to the blood disorder and he was told by his doctor that his blood disorder could cause his spleen issue. The examiner should provide the following medical opinions: (a.) Provide a diagnosis of any blood disorder. (b.) Indicate whether the blood disorder is an acquired disability, congenital disease or congenital defect. (c.) If it is at least as likely as not (50 percent or greater probability) that the disorder is an acquired disability (rather than one congenital or developmental in nature), is it also at least as likely as not that the disorder arose during a period of active duty, or was otherwise caused by and injury during a period of active duty? (d.) If it is more likely than not (greater than 50 percent probability) that the blood disorder is a congenital disease, is it at least as likely as not (50 percent or greater probability) that the disorder arose during or was aggravated beyond its normal progression by active military service? (e.) If it is a congenital/developmental defect, is it at least as likely as not (50 percent or greater probability) that the current disorder or some degree of the disorder is the result of a superimposed injury or disease during active duty? If so, please describe the effect of such superimposed disease or injury to the extent possible. (f.) Is it at least as likely as not (at least a 50 percent probability) that any blood disorder is proximately due to the or the result of his service-connected diabetes mellitus, type II? (g.) Is it at least as likely as not (at least a 50 percent probability) that any blood disorder increased in severity by his service-connected diabetes mellitus, type II? (Does not need to permanently worsen). (h.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s blood disorder is directly related to military service, to include as a result of exposure to herbicides while he was in Vietnam? 3. If possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the January 2014 medical opinion, hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should consider and address the treatise material the Veteran submitted, and the Veteran’s contentions that he was diagnosed with diabetes prior to the blood disorder and he was told by his doctor that his blood disorder could cause his spleen issue. The examiner should provide the following medical opinions: (a.) Is it at least as likely as not (at least a 50 percent probability) that the diagnosed splenectomy condition, is proximately due to the or the result of his service-connected diabetes mellitus, type II? (b.) Is it at least as likely as not (at least a 50 percent probability) that the diagnosed splenectomy condition, increased in severity by his service-connected diabetes mellitus, type II? (Does not need to permanently worsen). (c.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s splenectomy is directly related to military service, to include as a result of exposure to herbicides while he was in Vietnam? 4. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 5. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 6. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.