Citation Nr: 21022813 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-07 933 DATE: April 19, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or secondary to prescribed medications for service-connected disabilities is remanded. Entitlement to service connection for kidney cancer residuals, to include as due to herbicide agent exposure or secondary to prescribed medications for service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1966 to August 1968. The Board remanded the case for further development in June 2019. The case has since been returned to the Board for appellate review. Although further delay is regrettable, the Board finds that a remand for an adequate medical opinion is required before the Veteran’s claim can be decided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The case has been advanced on the docket pursuant to 38C.F.R. §20.900(c). 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or secondary to prescribed medications for service-connected disabilities is remanded. In April 2020, a VA clinician opined that the Veteran’s hypertension was less likely than not caused by his medications for his service-connected disabilities. However, the clinician did not adequately address whether the Veteran’s hypertension was aggravated by the medications, as requested in the remand directives, which could also result in a grant of service connection. 38 C.F.R. § 3.310(b); see generally El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In that regard, the clinician generalized that because the Veteran’s medication, Indomethacin, was not discontinued due to concerns it was affecting the Veteran’s blood pressure, his hypertension was less likely than not related to or aggravated by the medication. This statement is conclusory without supporting rationale. In November 2020, an additional opinion was provided; however, the clinician did not provide an opinion regarding whether the Veteran’s hypertension is less likely than not caused or aggravated by his medications for service-connected disabilities, specifically Indomethacin, noting only lisinopril, amlodipine, and Lasix medications in his report. Furthermore, the Veteran’s representative provided medical literature to support a relationship between hypertension and herbicide exposure. The November 2020 clinician acknowledges the suggested association; however, concludes it does not establish a cause of hypertension, without supporting rationale. Finally, the Board notes the Veteran’s claim for service connection for hypertension has been found to be inextricably intertwined with his pending claim for service connection kidney cancer based on a September 2016 Nephrology VA examination report in which the examiner indicated that the Veteran had hypertension due to renal dysfunction or caused by a kidney condition. 2. Entitlement to service connection for kidney cancer residuals, to include as due to herbicide agent exposure or secondary to prescribed medications for service-connected disabilities is remanded. Although VA has established a presumption of service connection due to herbicide agent exposure for some disorders, kidney cancer is not on the list. 38 C.F.R. § 3.309 (e). Nevertheless, a Veteran is not precluded from establishing service connection on a direct basis if the most probative evidence supports an etiological nexus between their current disability and herbicide agents. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). This issue was remanded to obtain an opinion addressing the Veteran’s contention that exposure to herbicides, including Agent Orange caused his kidney cancer. In April 2020, a VA clinician opined because kidney cancer was not included on the list of presumptive diseased due to herbicide exposure, it was less likely than not that the Veteran’s kidney cancer was due to his conceded in-service herbicide agent exposure. Unfortunately, the clinician did not provide an opinion regarding service connection on a direct basis between herbicide agent exposure and kidney cancer. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to a qualified VA clinician for an opinion regarding the etiology of his hypertension. If an additional examination of the Veteran is deemed warranted, such examination should be provided. Following a review of the relevant records and lay statements, the examiner is asked to provide a response to the following: (a.) Is it at least as likely as not that the Veteran’s hypertension was caused by his medication, Indomethacin, for his service-connected disabilities? (b.) Is it at least as likely as not that the Veteran’s hypertension was aggravated by his medication, Indomethacin, for his service-connected disabilities? (c.) Is it at least as likely as not that the Veteran’s hypertension was caused by his in-service herbicide agent exposure? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of the medication for a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran’s hypertension was aggravated beyond the normal progression due to the medications for a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. The clinician is asked to address the articles referenced by the representative in the Correspondence received March 2019, specifically regarding the sufficient evidence of an association between exposure to herbicides and hypertension. A complete rationale should be provided for his/her opinions. The clinician is encouraged to cite to medical/scientific information to support his/her opinion as appropriate. The clinician is advised that a rationale that service connection for hypertension is not appropriate because VA has not established a presumption for the disorder is insufficient and may require further development. 2. Forward the Veteran’s claims file to a qualified VA clinician for an opinion regarding the etiology of his kidney cancer. If an additional examination of the Veteran is deemed warranted, such examination should be provided. Following a review of the relevant records and lay statements, the examiner is asked to provide a response to the following: (a.) Is it at least as likely as not that the Veteran’s kidney cancer was caused by his in-service herbicide agent exposure? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case must be readjudicated by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, 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.