Citation Nr: 21024803 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-42 362 DATE: April 26, 2021 REMANDED Entitlement to service connection for skin cancer of the face, arms, and back, to include as due to herbicide agent or sun exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for atrial fibrillation, to include as due to herbicide agent exposure or as secondary to hypertension, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure or as secondary to hypertension or atrial fibrillation, is remanded. Entitlement to special monthly compensation (SMC) based on loss or loss of use of a creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to January 1970. These matters initially came before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision. In March 2019, the Board remanded these matters for further development. This appeal was previously before the Board in February 2021, at which time the issues currently on appeal were again remanded for further development. As will be discussed in greater detail below, the Board finds that there has not been substantial compliance with the February 2021 remand directives such that another remand is once again necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for skin cancer of the face, arms, and back, to include as due to herbicide agent or sun exposure, is remanded. With respect to the Veteran’s claim of service connection for skin cancer of the face, arms, and back, the February 2021 remand determined that a December 2019 VA medical opinion was insufficient to adjudicate the claim because the examiner did not provide any rationale for his conclusion that the Veteran’s skin cancer was less likely than not due to his in-service sun exposure. The Board thus directed the agency of original jurisdiction (AOJ) to obtain an addendum opinion, and the opinion provider was specifically directed to provide a supporting rationale. Although a negative opinion was obtained in March 2021, the opinion provider once again failed to provide a rationale supporting his conclusion that the Veteran’s skin cancer was not related to any in-service sun exposure. Indeed, while the examiner noted that the Veteran’s skin cancer developed out of his period of active duty service, the examiner did not explain the clinical significance of this finding. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). As such, there has not been substantial compliance with the February 2021 remand, and another medical opinion is necessary. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from St. Louis Vista electronic records system and are dated to October 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. With respect to the Veteran’s claim of service connection for hypertension, the February 2021 remand determined that a December 2019 VA medical opinion was insufficient to adjudicate the claim, as the examiner did not consider the National Academy of Sciences (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2012 which concluded that there is “limited or suggestive evidence of an association” between hypertension and herbicide exposure, or the 2018 update in which NAS moved hypertension from the “limited or suggestive evidence” category to the “sufficient evidence of an association” category. The Board thus directed the AOJ to obtain an addendum opinion, and the opinion provider was specifically directed to discuss the NAS Institute of Medicine’s 2018 update. Although an addendum opinion was obtained in March 2021, the opinion provider once again failed to discuss the NAS Institute of Medicine’s 2018 update. As such, there has not been substantial compliance with the February 2021 remand, and another medical opinion is necessary. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to service connection for atrial fibrillation; entitlement to service connection for erectile dysfunction; and entitlement to SMC based on loss or loss of use of a creative organ are remanded. As noted in the February 2021 remand, the Veteran’s claims of service connection for atrial fibrillation and erectile dysfunction are inextricably intertwined with the claim of service connection for hypertension, and his claim for SMC based on loss or loss of use of a creative organ is inextricably intertwined with the claim of service connection for erectile dysfunction. As such, the Board will defer consideration of these issues at this time. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the Veteran’s claim for the second issue). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the St. Louis Vista electronic records system for the period since October 2020; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from a medical professional with appropriate expertise (other than the medical professional who provided the December 2019 and March 2021 opinions) to address whether the Veteran’s hypertension is related to his military service, to include his conceded in-service exposure to herbicide agents. The record must be sent to, and reviewed by, the medical professional. The need for an additional examination is left to the discretion of the medical professional selected to write the opinion. Following a review of the entire record, the medical professional should address the following: Is the Veteran’s hypertension at least as likely as not related to in-service exposure to herbicide agents? The medical professional is advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The medical professional must also discuss the significance of the National Academy of Sciences (NAS) Institute of Medicine’s 2018 update in which NAS moved hypertension from the “limited or suggestive evidence” category of an association between hypertension and herbicide agent exposure to the “sufficient evidence of an association” category. A complete rationale for all opinions must be provided. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from a medical professional with appropriate expertise (other than the medical professional who provided the December 2019 and March 2021 opinions) to address whether the Veteran’s skin cancer, diagnosed as actinic keratosis and basal cell carcinomas, is related to his military service, to include any in-service sun exposure. The record must be sent to, and reviewed by, the medical professional. The need for an additional examination is left to the discretion of the medical professional selected to write the opinion. Following a review of the entire record, the medical professional should address the following: Is the Veteran’s skin cancer, diagnosed as actinic keratosis and basal cell carcinomas, at least as likely as not related to any in-service sun exposure? A complete rationale for all opinions must be provided. 4. If, and only if, the Veteran is granted service connection for hypertension, obtain an addendum opinion from an appropriate clinician as to the Veteran’s atrial fibrillation. The clinician must review the claims file. The clinician is asked to provide a response to the following: Is the Veteran’s atrial fibrillation at least as likely as not proximately due to hypertension? If not, is the Veteran’s atrial fibrillation at least as likely as not aggravated, i.e., worsened beyond its natural progression, by hypertension? A complete rationale for all opinions must be provided. 5. If, and only if, the Veteran is granted service connection for hypertension or atrial fibrillation, obtain an addendum opinion from an appropriate clinician as to the Veteran’s erectile dysfunction. The clinician must review the claims file. The clinician is asked to provide a response to the following: Is the Veteran’s erectile dysfunction at least as likely as not proximately due to hypertension and/or atrial fibrillation? If not, is the Veteran’s erectile dysfunction at least as likely as not aggravated, i.e., worsened beyond its natural progression, by hypertension and/or atrial fibrillation? A complete rationale for all opinions must be provided. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.