Citation Nr: 21032683 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-24 634 DATE: May 27, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for renal cell carcinoma residuals status postoperative left nephrectomy, to include as secondary to in-service herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran had active service from August 1961 to May 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision. In May 2017, the Veteran testified at a Board hearing at the Agency of Original Jurisdiction (AOJ) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2017, the Board remanded these matters for additional development. 1. Entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. In August 2017, the Board remanded this matter to obtain a VA examination to determine the nature and likely etiology of the Veteran's claimed hypertension (a disease that is not on the list of diseases enumerated in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on herbicide exposure). It noted the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 conclusions that there was "limited or suggestive" evidence of an association between exposure to herbicide agents and hypertension. The September 2019 VA examiner provided an opinion based on an inaccurate factual premise, concluding that there was no medical literature or recognized meta analytical studies to support that hypertension was due to herbicide exposure. The examiner also did not acknowledge or discuss any NAS findings concerning hypertension. The Board further notes that NAS has moved hypertension to the category of "sufficient" evidence of an association with herbicides from its previous classification in the "limited or suggestive" category. See November 15, 2018, news release from NAS at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 The Board cannot make a fully-informed decision on this matter without obtaining an additional medical opinion as to whether the presently diagnosed hypertension was etiologically related to the Veteran's presumed in-service herbicide exposure in light of the updated conclusions reached by NAS that there is now sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. 2. Entitlement to service connection for renal cell carcinoma residuals status postoperative left nephrectomy, to include as secondary to in-service herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. Renal cell carcinoma is also not on the list of diseases enumerated in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on herbicide exposure. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on a direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Unfortunately, the September 2019 and June 2020 VA examination reports/medical opinions did not discuss whether the presently diagnosed renal cell carcinoma residuals were etiologically related to the Veteran's presumed in-service herbicide exposure. Thus, the AOJ should obtain an additional VA medical opinion with supporting rationale to clarify the etiology of the Veteran's claimed renal cell carcinoma residuals. The matters are REMANDED for the following actions: 1. Obtain a VA medical opinion to clarify the etiology of the Veteran's claimed hypertension from an appropriate examiner. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran's statements, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed hypertension, onset during active service, manifested to a compensable degree within a year after service separation, or was causally related to events in service, specifically conceded in-service herbicide exposure. The examiner must discuss and acknowledge the conclusions reached by the National Academies of Sciences, Engineering, and Medicine that there is now sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. In doing so, the examiner should acknowledge and discuss the findings in the service treatment records, post-service VA and private treatment records, the September 2019 VA examination report/medical opinion, and the voluminous medical treatise evidence associated with the record as well as the NAS news release cited above. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2020). 2. Obtain a VA medical opinion to clarify the etiology of the Veteran's claimed renal cell carcinoma residuals from an appropriate examiner. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran's statements, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed renal cell carcinoma residuals were causally related to events in service, to include conceded in-service herbicide exposure. In doing so, the examiner should acknowledge and discuss the findings in the service treatment records, post-service VA and private treatment records, private medical opinions dated in September 2017 from J. B., M. D. and November 2017 from D. W., M. D., the September 2019 and June 2020 VA examination reports/medical opinions, and the voluminous medical treatise evidence associated with the record. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2020). 3. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the December 2020 SSOC. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.