Citation Nr: 21029576 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 13-24 491 DATE: May 14, 2021 REMANDED Entitlement to service connection for a liver disability, to include lesions on the left lobe, is remanded. Entitlement to service connection for a kidney disability, diagnosed as diabetic nephropathy, chronic kidney disease, stage 2 secondary to diabetes mellitus, and bilateral renal cysts, is remanded. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from October 1966 to October 1968, from November 2001 to February 2003, and from February 2003 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran's Form 9 indicates that he did not request a Board hearing. In February 2019, the Board remanded this appeal for further development, including the procurement of outstanding VA treatment records and an addendum opinion pertaining to the etiology of the Veteran's current kidney condition. To the extent that the directed VA records and June 2019 addendum opinion were obtained, substantial compliance with the Board's February 2019 remand directives has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). However, for the reasons set forth below, to the extent that the June 2019 VA addendum report failed to render an adequate opinion, substantial compliance with the Board's February 2019 Remand directives has not occurred; accordingly, the Veteran's service connection claims must once again be remanded for further development. See id. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (2016). See 38 U.S.C. § 7107(b) (2020). 1. Entitlement to service connection for a liver disability, to include lesions on the left lobe, is remanded. Unfortunately, the Veteran's service connection claim for a liver disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his current liver condition is causally related to his military service, to include his in-service exposure to herbicide agents in Korea and as secondary to his service-connected diabetes mellitus. In August 2011, the Veteran was afforded a VA examination to assess the etiology and nature of his claimed liver condition, which culminated in a report finding that that Veteran does not suffer from a current liver diagnosis or any current liver condition, as no such condition was observed upon examination and the evidence of record does indicate diagnosis or treatment of any liver condition. However, the August 2011 VA examination report fails to address competent medical evidence contained in the Veteran's VA treatment records indicating that a November 2010 CT scan revealed the presence of a "hypodense lesion" in the posterior portion of left lobe which was too small to characterize but led to the "suggestion of fatty infiltration" and a diagnosis of "nonspecific lesions" on the Veteran's liver. When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that an examination report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including all competent medical evidence reflecting a diagnosis and symptomatology, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, as the August 2011 VA examination report fails to address the 2010 CT scan results and diagnosis, the current record before the Board lacks an adequate nexus opinion or other competent evidence sufficient to determine the etiology of the Veteran's claimed liver disability. Accordingly, the Veteran's claim for a liver disability must be remanded for an additional medical opinion to determine whether such disability is related to his active military service and thus entitled to service connection on any basis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 2. Entitlement to service connection for a kidney disability, diagnosed as diabetic nephropathy, chronic kidney disease, stage 2 secondary to diabetes mellitus, and bilateral renal cysts, is remanded. Unfortunately, the Veteran's service connection claim for a kidney disability must also be remanded for further development. The Veteran contends that his current kidney condition was caused by his active military service, to include as secondary to his service-connected diabetes mellitus. In June 2019, the Veteran underwent the VA examination directed by the Board's February 2019 Remand, which noted diagnoses of diabetic nephropathy, nephrolithiasis and cystic kidney disease and culminated in a report finding that the Veteran's kidney condition is not causally related to his military service, to include as secondary to his service-connected diabetes mellitus. However, the June 2019 VA examination report concludes that the Veteran's claimed kidney condition is less likely as not aggravated beyond its natural progression by the Veteran's service-connected diabetes mellitus on the grounds that the Veteran's "[c]laim folder and VA electronic medical record [are] silent for aggravation of the right and left renal cyst. No complication, no surgical management, no hospitalization for it." The Board further notes that the August 2011 VA examination report states as follows: This Veteran's right and left simple kidney cysts and past right kidney nephrolithiasis are not caused by or a result of his service connected diabetes mellitus Type 2.... There is no renal disease in this Veteran as to consider that [these] renal cysts are a result of such renal disease. There is no specific cause for the development of simple renal cysts but it can be seen in patients with end-stage renal disease, that with time the longer with [sic] the chronic kidney disease or in dialysis may develop this type of cyst, different from the patient with polycystic kidney disease which eventually develop[s] end-stage chronic kidney disease and end up receiving dialysis. As stated above, when VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr, 21 Vet. App. at 310-11. The Board concludes that, even when taken together, the August 2011 and June 2019 VA opinions fall short of the required level of adequacy, due to the following: (1) the failure to address the diagnosis noted in the June 2019 VA examination report of "diabetic nephropathy," and whether it is related to the Veteran's service-connected diabetes mellitus; (2) the failure to address the Veteran's private treatment records dated February 2018 noting his diagnosis of chronic kidney disease, stage 2 secondary to diabetes mellitus; (3) the failure to address the Veteran's private treatment records dated February 2018 noting his diagnosis of "diabetic kidney disease". Furthermore, the examiner did not discuss VA and private treatment noting treatment for urinary dysfunction. Accordingly, as the current record before the Board lacks an adequate nexus opinion or other competent evidence sufficient to determine the etiology of the Veteran's claimed kidney disability, and a remand by the Board confers upon the claimant a legal right to substantial compliance with its remand directives, see Stegall, 11 Vet. App. at 271, the Veteran's claim must be remanded for an additional medical opinion to determine whether his claimed kidney disability is related to his active military service and thus entitled to service connection on any basis. See Colvin, 1 Vet. App. at 175. 3. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. 4. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. 5. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. 6. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to the Veteran's service-connected low back disability, is remanded. Unfortunately, the Veteran's service connection claims for radiculopathy must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his current radiculopathy is related to his active military service, to include as secondary to his service-connected lumbar spine disability or diabetes mellitus. In February 2012, the Veteran was afforded a VA examination which culminated in a report diagnosing the Veteran with peripheral neuropathy and further finding that "there is no radiculopathy" based upon an "EMG study." However, the February 2012 VA examination report fails to address competent medical evidence contained in the Veteran's VA treatment records suggesting that the Veteran been diagnosed with lumbar radiculopathy, to include as due to a May 2011 MRI confirming lumbar radiculopathy, but he has also been treated rather extensively at VA for lumbar radiculopathy, to include physical therapy and prescription medication (gabapentin), and VA treatment records dated April 2013 reflect right leg numbness and pain "suggestive of" radiculopathy secondary to central disc protrusion L5-S1. In this case, as the February 2012 VA examination report fails to address all relevant competent medical evidence of record, the current record before the Board lacks an adequate nexus opinion or other competent evidence sufficient to determine the etiology of the Veteran's claimed radiculopathy. Accordingly, the Veteran's radiculopathy claims must be remanded for an additional VA examination to determine whether such disability is related to his active military service and thus entitled to service connection on any basis. See Colvin, 1 Vet. App. at 175. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the August 2011 examiner, to determine the nature and etiology of the Veteran's claimed liver disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's liver disability is due to or otherwise causally or etiologically related to his military service. The examiner must discuss the November 2010 CT scan that revealed the presence of a "hypodense lesion" in the posterior portion of left lobe which was too small to characterize but led to the "suggestion of fatty infiltration" and a diagnosis of "nonspecific lesions" on the Veteran's liver. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the August 2011 and June 2019 examiners, to determine the nature and etiology of the Veteran's claimed kidney disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner must address all kidney diagnoses of record, to include nephrolithiasis, diabetic nephropathy, and cystic kidney disease, and is requested to provide an opinion as to the following: (a) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's kidney disability is due to or otherwise causally or etiologically related to his military service; (b) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's kidney disability is due to or otherwise causally or etiologically related to his service-connected diabetes mellitus, to include whether the Veteran's current kidney symptoms have been aggravated by his service-connected diabetes mellitus, and, if aggravation is found, the examiner should determine, if possible, to what extent the Veteran's current kidney condition has been aggravated beyond the natural progression of such disorders. The examiner must address all relevant competent medical and lay evidence of record, including but not limited to the following: (a) all kidney diagnoses of record, to include "diabetic nephropathy," "nephrolithiasis," "cystic kidney disease,"; the May 2011 MRI reflecting a hyperintense renal lesion; a simple cyst on left kidney; and a simple cyst on right kidney; and a December 2009 CT scan reflecting bilateral renal hypodense and isodense cortical structures, indeterminate. (b) Private treatment records dated February 2018 noting the Veteran's diagnosis of chronic kidney disease, stage 2, secondary to diabetes mellitus; (c) Private treatment records dated February 2018 noting the Veteran's diagnosis of diabetic kidney disease; The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 4. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the February 2012 examiner, to determine the nature and etiology of the Veteran's claimed radiculopathy. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner must address all relevant diagnoses of record, to include radiculopathy of the bilateral upper and lower extremities, and is requested to provide an opinion as to the following: (c) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's radiculopathy is due to or otherwise causally or etiologically related to his military service; (d) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's radiculopathy is due to or otherwise causally or etiologically related to his service-connected low back disability, to include whether the Veteran's current radiculopathy symptoms have been aggravated by his service-connected low back disability, and, if aggravation is found, the examiner should determine, if possible, to what extent the Veteran's current radiculopathy has been aggravated beyond the natural progression of such disorder. The examiner must address all relevant competent medical and lay evidence of record, including but not limited to the following: (a) the May 2011 MRI reflecting lumbar radiculopathy; (b) VA treatment records dated November 2012, April 2013, May 2013, July 2013, December 2013, April 2014, August 2014, December 2014, and March 2017 reflecting treatment for lumbar radiculopathy, to include physical therapy and prescription medication (gabapentin); and (c) VA treatment records dated April 2013 reflecting right leg numbness and pain "suggestive of" radiculopathy secondary to a central disc protrusion of the lumbar spine (L5-S1). The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.