Citation Nr: 21027007 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 08-24 120 DATE: May 4, 2021 REMANDED Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for renal disease, to include as secondary to kidney stones is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967 with service in the Republic of Vietnam. The Board remanded the issues on appeal in August 2018 for further development. There has not been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for kidney stones is remanded. 2. Entitlement to service connection for renal disease is remanded. The Veteran contends that his kidney stones are related to military service. The Veteran also contends he has renal disease, which is proximately caused by his kidney stones. The Veteran asserts that his exposure to herbicide agents in Vietnam caused his kidney problems. The Board notes that the Veteran's personnel record confirm his service in Vietnam from July 1966 to June 1967; as such, his exposure to herbicide agents is conceded. While military personnel records confirm the Veteran's service in Vietnam, kidney stones, nor any of the kidney disabilities listed above (or in treatment records) are enumerated diseases associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not applicable in that instance. Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Veteran asserts in a March 2018 VA Form 9 that medical literature indicates that herbicide agents are not eliminated by the body and that they accumulate in the kidneys. The Veteran contends that his exposure to herbicides resulted in his current kidney problems on a direct basis. The Board notes that the medical opinion obtained in 2019 did not address the Veteran's exposure to herbicide agents; as such, the Board finds that a medical opinion that includes consideration of the Veteran's presumed exposure to Agent Orange is needed. The issue of service connection for renal disease must also be remanded because the March 2019 VA examiner reported that the Veteran did not have a current diagnosis of renal disease, which appears to conflict with treatment records. A November 2015 VA psychology note reports that the Veteran has chronic kidney disease stage 3. Additional treatment records which include a May 2016 VA nephrology outpatient note, identifies chronic kidney disease grade 3, "likely from episode of [acute kidney injury] AKI and [hypertension] HTN;" a November 2018 VA neurology consultation note reports a diagnosis of chronic kidney disease; a July 2019 VA treatment record identifies chronic kidney disease stage 3 as one of the Veteran's active problems; and an April 2020 VA nephrology outpatient note indicates that the Veteran has chronic kidney disease stage 2 3 aging kidneys. Thus, there is a conflict between the examiner's report and the Veteran's treatment records. As such, a new medical opinion is needed because when the Secretary undertakes to provide a veteran with a VA medical examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's kidney stone disability and renal disease disability. A copy of this Remand and the claims file must be reviewed by the examiner. An examination of the Veteran is not necessary, unless deemed so by the examiner. 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 stone disability (i) was incurred during, or is otherwise due to, the Veteran's period of service, including his conceded exposure to herbicides during service in Vietnam? The examiner is asked to consider the Veteran's statements provided on the VA Form 9 received on March 3, 2018. (b) Does the Veteran currently have renal disease disability? If so, it is at least as likely as not due to the Veteran's period of service, including his conceded exposure to herbicides during service in Vietnam? The examiner should note that, although kidney stones and renal disease are not presumptively related to herbicide agent exposure, this presumption does not bar the finding of a direct etiological relationship. The examiner may not state that it is less likely as not that the Veteran's kidney stones or renal disease is related to active duty service because it is not a presumptive condition of exposure to herbicide agents. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.