Citation Nr: 21011291 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-27 960 DATE: March 1, 2021 REMANDED Service connection for kidney disease, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely initiated his appeal in April 2014 and perfected it in April 2017. In July 2020, the Board remanded this issue for further development. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. 1. Service connection for kidney disease, to include as due to herbicide agent exposure, is remanded. The October 2020 VA examiner noted the Veteran’s left kidney was removed, there “is nephritis, infection, or other pathology” in his remaining kidney, and (in the medical history section) a diagnosed chronic kidney disease that “is managed with oral medication.” See October 2020 VA examination. In an October 2020 opinion, on the same day, the examiner noted there were no current objective findings on examination or in his medical records of a current diagnosis of chronic kidney disease. However, his VA treatment records show numerous notations of chronic kidney disease as late as September 2020 (the month before his examination) and no diagnostic testing was conducted during the examination. A more thorough explanation is needed if the Veteran is assessed to no longer have chronic kidney disease. Furthermore, in another October 2020 opinion, the examiner provided a somewhat speculative and conclusory negative causal link (“nexus”) opinion regarding the Veteran’s left kidney removal that does not provide the Board with adequate information needed to assess the Veteran’s claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Accordingly, a new examination and medical opinion are required. The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, these remanded claims must be processed expeditiously. 2. Obtain any updated VA treatment records (and adequately identified private treatment records) for association with the claims file. [The Veteran is noted as receiving nephrology care as part of the Choice program. It appears related medical records were noted as being scanned into his medical record but are not available in his case file. For example, an April 2019 Community Care-Result note concerning a February 2019 nephrology appointment and an October 2017 Non-VA Care Consult Result noted for an August 2019 nephrology visit. Please make efforts to ensure these records are in the case file.] 3. After directive two, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and forward the record with the updated evidence to a nephrologist, oncologist, or appropriate clinician to determine the nature and cause of the Veteran’s kidney conditions. The examiner should confirm that the claims file was reviewed. Applicable medical research and literature should also be consulted and used to support conclusions. (a.) Identify any kidney conditions, including chronic kidney disease, kidney cancer, renal cell carcinoma, the removal of the Veteran’s left kidney. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any prior diagnoses (especially diagnoses of chronic kidney disease in the Veteran’s right kidney) no longer apply, the examiner must explain why, citing to the pertinent diagnostic criteria. [In the examination, address medications taken for the Veteran’s kidney conditions. There are numerous notations of the Veteran taking Benazepril for, among other things, his kidney condition and later being switched to Entresto. Please comment on these medications.] (b.) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed kidney condition, had its onset in active service OR is otherwise related to the Veteran’s service, including any herbicide agent exposures? In rationale, among other things, the examiner should specifically comment on the following: i. August 31, 1987 Letter from the Dept of Human Resources Center for Disease Control for “Epidemiologic Studies of the Health of Vietnam Veterans,” noting a dioxin level of 5.8. ii. May 2011 Journal of Urology, Vol. 185, N. 4S, Supplement, 529: “Overton Brooks VAMC Preliminary Findings in Patients Exposed to Agent Orange with Renal Cell Cancer,” Ayme Schmeeckle, Shreveport, LA; Deborah Moore, Robert Moore, Phillip Hadaad, Dayton, OH. [Noted as “email correspondence” received April 28, 2017.] i. June 2020 Environmental Health Perspectives Journal, Vol. 128, No. 6, “Occupational Pesticide Use and Risk of Renal Cell Carcinoma in the Agricultural Health Study,” Gabriella Andreotti, Laura E. Beane Freeman, Joseph J. Shearer, Catherine C. Lerro, Stella Koutros, Christine G. Parks, Aaron Blair,1Charles F. Lynch, Jay H. Lubin, Dale P. Sandler, and Jonathan N. Hofmann. [See January 2021 Appellate Brief and https://ehp.niehs.nih.gov/doi/pdf/10.1289/EHP6334.] (c.) If the examiner concludes that the Veteran’s kidney condition is not related to his service, the examiner should identify the more likely cause of his cancer. (The examiner is advised that the absence of conditions from the list of conditions which are presumed to be the result of exposure to herbicide agents in Vietnam is NOT, by itself, a sufficient explanation for a negative opinion.) The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): • February 2013 Statement in Support of Claim (referred to as his “Original Statement.”): The Veteran reported while serving a year in Vietnam from 1967-1968 he “provide[d] ground security for bull dozers equipped with ‘cutting blades’” that were knocking down “large trees and large expanses of jungle known to be used as enemy base camps” where “[t]he jungle had been defoliated with high concentrations of ‘Agent Orange’, sprayed from the air,” where he was “exposed for weeks on end to defoliated, knocked down, jungle vegetation covered with ‘Agent Orange’ residue.” He then elaborated, “[w]e ate in it, we drank in it, we walked through it, we slept in it on the ground, and we constantly breathed in the broken and crystallized ‘Agent Orange’ dust in the air as we disturbed the defoliated surroundings.” He also reported, “[i]n April of 1987, as per the request of the U.S. Department of Health and Human Resources, Center For Disease Control, [he] took part in a large study entitled the ‘Epidemiologic Studies of the Health of Viet Nam Era Veterans’... [where he] was found to have above average levels of ‘dioxin’ in [his] blood.” Additionally, he summarized his recent cancer treatment. The Veteran reported on July 24, 1998, he began urinating blood in large quantities. Also, “[he]was diagnosed ·and treated for... Renal Cell Carcinoma (Kidney Cancer)....” He reported he was referred to a surgeon who eventually removed his left kidney. He identified facilities (private and VA) that provided him medical care and elaborated on additional details of the evidence submitted, including the availability of the evidence. • March 2013, VA Form 4138, “Supplemental Statement”: The Veteran reported that while in Vietnam he served in a mechanized infantry battalion where he most often traveled on the top of armored personnel carriers; however, when under attack or at their final destination, “they performed as regular infantry, on the ground, in almost all missions assigned.” He reported that “[he] served in number of other operations.” Among other things, he further identified evidence such as: o VA Form 10-9009 AGENT ORANGE · WORKSHEET, prepared by the Veteran in March 2013 for his Agent Orange screening. o April 1987 laboratory report for blood drawn which he reported indicated a dioxin level in his blood of 5.8 parts per trillion (ppt). [He also reported his personal belief that “[i]t is not possible to tell when my malignant tumor began to establish itself in my left kidney, but it is possible to establish with a reasonable degree of certainty, that dioxin, as a result of my Vietnam exposure to Agent Orange, ‘as likely as not’ was circulating in my bloodstream at the same time and ‘as likely as not’ served to cause my kidney cancer at the very same time that it was causing my ischemic heart disease” and “[b]oth medical conditions were to closely related ‘in time’ not to be related in some fashion to dioxin... in my blood.”] o An August 31, 1987 Letter from the Dept of Human Resources Center for Disease Control for “Epidemiologic Studies of the Health of Vietnam Veterans,” noting a dioxin level of 5.8 and “the level of dioxin at which adverse health effects might occur in humans is not currently known, but CDC is involved in studies which might shed some light on this issue.” [He reported his personal belief that this noted dioxin level “was determined to be 45% higher than the average of all Vietnam veterans tested….” and “the dioxin circulating in my blood at the time of my ischemic Heart Disease was also, during the same time period circulating in my Left Kidney and was, ‘as likely not,’ causing damage in my ‘genitourinary system’, which includes my kidneys.”] o May 2000 cardiologist medical report, IHD postsurgical notes, case history and record case summary related to IHD. [The Veteran reported he “included these items ·to show the close chronological relationship between [his] renal cell carcinoma (“Kidney Cancer”) resulting in the surgical removal of [his] Left Kidney and [his] Ischemic Heart Disease with Myocardial Infarction resulting in [his] Quadruple By-pass Surgery. Surely, the cause of my early symptoms of Ischemic Heart Disease was present in my blood stream at the same time as the cause and early Symptoms of my Kidney Cancer. NOTE: As a matter of absolute fact, the dioxin was circulating in my blood before I left my active service in the U.S. Army….”] o Laboratory report by Dr. A.S., urologist and surgeon who removed the Veteran’s left kidney noted, “Left Kidney nephrectomy: Renal Cell carcinoma, ‘clear type’” and described the pattern of growth of the Veteran’s malignant tumor as “mixed solid” and “alveolar.” [The Veteran reported understanding that “‘Soft Tissue Sarcoma’ of the ‘clear cell type,’ which are ‘alveolar type’ (‘pitted’ or ‘honey combed’) is exactly the type of ‘Malignant Glomus Tumor’ of ‘fleshy tissues and organs’ that are defined as “Disease associated with exposure to certain herbicide agents, particularly Agent Orange.”] o May 14, 2011 ‘‘News Release” of the American Urological Association entitled “Agent Orange Linked to Renal Cancer”. • In April 2013, among other things, the Veteran provided a copy of the Agent Orange examination letter and various medical records. See April 2013, Veteran Letter, “Additional Parts.” • In July 2013, the Veteran provided a more comprehensive addendum that summarized his lay statements and medical history. See July 2013, VA Form 4138, “Addendum.” • In August 2013, the Veteran provided additional information on his medical history prior to and shortly after departing from service. August 2013, VA Form 4138, “Second Addition.” • In April 2014, among other things, the Veteran provided greater details on the testing conducted for the April 1987 “Epidemiologic Studies for Viet Nam Veterans.” See April 2014 NOD. • In April 2017, among other things, the Veteran provided a critique of the evidence listed in the March 2013 Statement of Case and provided nuances of points and his perspective of the evidence. See April 2017 VA Form 9. Please note that the Veteran is able to report observable symptoms, and, for the purposes of this examination, please assume the Veteran’s reports to be credible and accurate as to any observable symptoms or events. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arritt, David 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.