Citation Nr: 21023669 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-34 179 DATE: April 21, 2021 REMANDED Entitlement to service connection for allergies to include as due to herbicide agents and/or due to water contamination at Camp Lejeune is remanded. Entitlement to service connection for arthritis to include as due to herbicide agent exposure is remanded. Entitlement to service connection for hypertension to include as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1968 to April 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decision by the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO) in December 2008. A subsequent rating decision in December 2009 confirmed the denial of service connection for allergies. As part of its duties to assist veterans who have filed claims for benefits, VA may be required to provide a medical examination or opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). A remand by the Board confers a right to compliance with the directives of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, however, the Board find that there has not been substantial compliance with the Board's prior remand. For the reasons set forth below, additional remand is necessary to afford the Veteran every possible consideration. 1. Entitlement to service connection for allergies to include as due to herbicide agents and/or due to water contamination at Camp Lejeune is remanded. Regarding the Veteran’s claim of allergies, he has asserted that the disability was caused by exposure contaminated water during his service at Camp Lejeune, North Carolina. In accordance with the September 2017 Board remand, the Veteran was afforded a VA examination in the July 2019 and the VA examiner opined that it was less likely than not that the Veteran’s allergies were caused by active service. The examiner noted that the allergies onset five year after separation from service. However, the Board finds that the examiner did not provide an opinion as to whether the Veteran’s allergies were cause by his contaminated water exposure at Camp Lejeune, or discuss the significance, if any, of in-service treatment for a stuffy nose, as directed by the September 2017 Board remanded. Accordingly, a new VA examination is required. 2. Entitlement to service connection for arthritis to include as due to herbicide agent exposure is remanded. Regarding the Veteran’s claim for arthritis, he has asserted that the disability was caused by exposure to herbicides during active service in the Republic of Vietnam. Exposure to herbicide agents during active service has been concede per an earlier December 2008 rating decision. In accordance with the September 2017 Board remand the Veteran was afforded a VA examination in July 2018 and an addendum opinion was also provided in December 2020. The VA examiner opined that it was less likely than not that arthritis onset in or was related to active service. The examiner noted that arthritis was first diagnosed in 1999, many years after separation from service. Regarding whether arthritis was caused or related to his exposure to herbicide agents, the examiner did not provide a responsive rationale for the negative etiological opinion provided. The Board is aware of the current disabilities listed in 38C.F.R. §3.309 (e) for which presumptive service connection is warranted, however a medical opinion based on direct service connection was requested to determine if the Veteran’s arthritis is related to his exposure to herbicide agents while serving in the Republic of Vietnam. The Board finds that the July 2018 and December 2020 VA opinions are incomplete. Although the examiner did not provide a rationale as to whether the Veteran’s arthritis was caused by his exposure to herbicide agents during active service. Accordingly, a new VA examination is required. 3. Entitlement to service connection for hypertension to include as due to exposure to herbicide agents is remanded. Regarding the Veteran’s claim for hypertension, he has asserted that the disability was caused by exposure to herbicide agents during active service in the Republic of Vietnam. Exposure to herbicide agents during active service has been concede per an earlier December 2008 rating decision. In accordance with the September 2017 Board remand the Veteran was afforded a VA examination in July 2018 and an addendum opinion was also provided in December 2020. The VA examiner opined that it was less likely than not that hypertension onset in or was related to active service. The examiner noted that hypertension was first diagnosed in 1998, many years after separation from service. Regarding whether hypertension was caused or related to his exposure to herbicide agents, the examiner considered the 2018 study by the National Academy of Science (NAS) suggesting that herbicide agents could be linked to hypertension, and determined that since VA has not yet recognized Vietnam Veteran’s with hypertension a presumptive disease or condition due ot herbicide exposure, therefore it was less likely than not that hypertension was caused by herbicide exposure. The December 2020 VA addendum reported opinion showed that the examiner concluded that it was less likely than not that hypertension was caused by in-service exposure to herbicide agents. The examiner noted that 2018 NAS study and remarked that it would speculative to determine if hypertension was connected to herbicide exposure without conclusive recognition by VA that hypertension was related to herbicide exposure. The Board is aware of the current disabilities listed in 38C.F.R. §3.309 (e) for which presumptive service connection is warranted, however a medical opinion based on direct service connection was requested to determine if the Veteran’s hypertension is related to his exposure to herbicide agents while serving in the Republic of Vietnam. The Board finds that the July 2018 and December 2020 VA opinions are incomplete. Although the examiner referenced the NAS study, their negative nexus opinion was based primarily upon the absence of hypertension from the presumptive disease list, without any specific consideration of the unique facts of this Veteran’s case and whether an etiological link could be established thereon. The VA examiner’s reference to VA policy and guidelines is not adequate in this instance to evaluate direct service connection. In sum, an addendum opinion must be obtained. These matters are REMANDED for the following actions: 1. Contact the Veteran’s representative and request that the representative submit full text articles for the record as cited to in a March 2021 brief as links often do not work or lead to dead ends and the brief only contains some extracts. 2. Obtain an addendum medical opinion from an appropriate examiner as to the nature and etiology of the Veteran's allergies. Following a thorough review of the claims file, the examiner should provide the following opinion: a) The examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's allergies began in service, was caused by service, or is otherwise related to active military service, including but not limited to contaminated water exposure while he was stationed at Camp Lejeune, North Carolina. The examiner must address the May 2010 letter from the Veteran’s treating physician, the Veteran’s contention that his allergies may be due to exposure to contaminated water at Camp Lejeune, a March 1969 STR (from Camp Lejeune) noting treatment for a stuffy nose, and private treatment records noting a history of environmental allergies. 3. Obtain an addendum medical opinion from an appropriate examiner as to the nature and etiology of the Veteran's arthritis. Following a thorough review of the claims file, the examiner should provide the following opinion: a) Is it at least as likely as not (50 percent or better probability) that the Veteran's arthritis is etiologically related to his active service, to include his exposure to herbicide agents while serving in the Republic of Vietnam? It is insufficient for a negative opinion to be based solely upon the absence of arthritis from the presumptive disease list. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If the VA examiner determines the Veteran’s arthritis is not related to his active service, to include exposure to herbicide agents, a detailed medical explanation as to why this is so must be provided. Presumptive service connection regarding arthritis need not be addressed, only direct service connection regarding exposure to herbicide agents is at issue. 4. Obtain an addendum medical opinion from an appropriate examiner as to the nature and etiology of the Veteran's hypertension. Following a thorough review of the claims file, the examiner should provide the following opinion: a) Is it at least as likely as not (50 percent or better probability) that the Veteran's hypertension is etiologically related to his active service, to include his exposure to herbicide agents while serving in the Republic of Vietnam? b) In rendering the opinion, the examiner must consider and reference the National Academy of Sciences Update 11, released 2018, indicating a change in the association between chemicals of interest and hypertension. It is insufficient for a negative opinion to be based solely upon the absence of hypertension from the presumptive disease list. (Continued on the next page)   All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If the VA examiner determines the Veteran's hypertension is not related to his active service, to include exposure to herbicide agents, a detailed medical explanation as to why this is so must be provided. Presumptive service connection regarding hypertension need not be addressed, only direct service connection regarding exposure to herbicide agents is at issue. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.