Citation Nr: 21026117 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-27 452A DATE: April 29, 2021 REMANDED Entitlement to service connection for urolithiasis (kidney stones), to include as secondary to service-connected diabetes mellitus, type II, and as secondary to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 to July 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded by the Board in March 2019. Unfortunately, the Board finds that a second remand is necessary. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board’s remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. Additionally, VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In March 2019, the Board remanded to obtain a VA examiner’s opinion on whether the Veteran’s kidney stones were either directly related to his military service (including his conceded exposure to herbicide agents), or caused or aggravated by his service-connected disabilities (including diabetes mellitus, type II). While the Veteran had a previous VA examination for kidney stones in August 2012, that examiner did not provide an opinion regarding direct service connection, nor did they provide an opinion on aggravation. A new VA medical opinion was obtained in December 2019. This opinion found that the Veteran’s kidney stones were less likely than not directly related to the Veteran’s military service, because “there are no urolithiasis attacks in [his service treatment records].” This opinion regarding direct service connection is inadequate because it fails to address whether the Veteran’s kidney stones are at least as likely as not related to his in-service exposure to herbicide agents, as specifically instructed in the March 2019 remand. In fact, the December 2019 opinion does not discuss the etiology of the Veteran’s kidney stones at all. Manifestation during service is only one of the ways a disability can be directly service connected; entitlement to service connection shall be granted for any disability that is found to be caused by an in-service disease, injury, or event, even if the disability does not develop until years after service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The December 2019 VA opinion is also inadequate on the issue of secondary service connection. The examiner found that it was less likely than not that the Veteran’s kidney stones were related to his service-connected diabetes, offering the following rationale: [I]n the specifics of this case there is no medical plausibility for etiology and causation. there is ONLY a small association but this is not equal to causality[.] The Board is unclear as to what “specifics of this case” lead the examiner to conclude that causation is implausible, and what exactly the examiner meant by a “small association.” This rationale is simply too vague for the Board to accept. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013). Finally, the December 2019 examiner’s opinion on aggravation—whether the Veteran’s service-connected diabetes worsened his kidney stones beyond their natural progression—is nearly incomprehensible. After stating that a baseline level of severity could not be established for the Veteran’s kidney condition, the examiner nonetheless found that it was less likely than not that the condition was aggravated beyond that baseline by a service-connected disability, offering the following rationale: [S]ingle episode of urolithiasis and bacteremia 2012 and urology notes visible. There [is] no plausible continuity or chronicity shown and no severity of diabetes to plausibly warrant an aggravation. [N]o other episode of note for an aggravation of urolithiasis by SC DM [service-connected diabetes mellitus]. It is unclear how the language of continuity and chronicity—which usually relate to claims for direct service connection, see 38 C.F.R. § 3.303(b)—is applicable here. It is also unclear how the examiner concluded that the “severity of diabetes” was not enough to aggravate kidney stones; the Veteran’s diabetes mellitus is currently evaluated at 20 percent, and the Veteran has been granted service connection for multiple disabilities secondary to his diabetes. Because of these deficiencies in the December 2019 opinion, the Board finds that there has not been substantial compliance with the March 2019 remand instructions, and once again returns this case to the RO. The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician—other than the December 2019 examiner—regarding the etiology of the Veteran’s urolithiasis (kidney stones). It is in the examiner’s discretion whether a new in-person or telehealth examination should be scheduled. The Veteran’s entire claims file (including a copy of this remand) must be made available to the examiner for review, and the examiner must certify in the examination report that the claims file has been reviewed. After reviewing the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s urolithiasis is related to an in-service injury, disease, or event? Specifically address the Veteran’s conceded exposure to herbicide agents. (b) Is it at least as likely as not that the Veteran’s urolithiasis had its onset during active service? (c) Is it at least as likely as not that the Veteran’s urolithiasis was caused by the Veteran’s service-connected diabetes mellitus? (d) Is it at least as likely as not that the Veteran’s urolithiasis was aggravated by the Veteran’s service-connected diabetes mellitus? (e) If the Veteran’s urolithiasis is unrelated to his military service or a service-connected condition, what is its likely etiology? (Continued on the next page) The examiner must provide a complete rationale for all opinions, supported by evidence and citing any records or medical literature relied upon. If any of the above requested opinions cannot be made without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.