Citation Nr: 21032696 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-14 550 DATE: May 27, 2021 REMANDED Entitlement to service connection for malignant melanoma is remanded. Entitlement to service connection for kidney cancer is remanded. Entitlement to service connection for bladder cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 and April 2017 rating decisions. This matter was previously remanded by the Board in February 2019 for further development. The Board notes that the Veteran's claims for entitlement to service connection for ischemic heart disease and diabetes mellitus, type 2, were granted since the prior remand in June 2020. As these grants represent a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for malignant melanoma is remanded. The Veteran filed for service connection for malignant melanoma in February 2017. The Board previously remanded this claim for an etiology opinion as to whether his current melanoma cancer was related to his presumed in-service herbicide agent exposure or whether his current diagnosis was caused or aggravated by his service-connected disabilities. The July 2019 post-remand opinion is inadequate. The examiner opined that the Veteran's skin melanoma was not incurred in service. His rationale was that his skin condition is not a presumptive diagnosis for exposure to Agent Orange and that his STR's (service treatment records) are silent as to the existence of the condition in service. However, while presumptive service connection is not warranted for malignant melanoma, service connection may still be found on a direct basis due to his presumed inservice herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (indicating that, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established alternatively on a direct-incurrence basis by establishing the required causation). Moreover, relying on the absence of inservice medical records related to malignant melanoma, without explaining the significance, cannot serve as positive evidence that a nexus is not warranted. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). As to a secondary opinion, the examiner opined his malignant melanoma is not secondary to or aggravated by a known service-connected condition. Since the examiner did not provide any additional explanation or a conclusion, this opinion is inadequate as well. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Accordingly, a remand is needed for an adequate addendum opinion on a direct and secondary basis. 2. Entitlement to service connection for kidney cancer is remanded. The Veteran filed for service connection for kidney cancer in February 2017. This claim was also previously remanded by the Board for direct service connection and secondary service connection opinions. The post-remand July 2019 opinion for this condition is also inadequate. The examiner opined that the Veteran's cancer was not incurred in service because it was not a presumptive condition for Agent Orange exposure, and the Veteran's STR's are silent for the condition. As noted, while service connection may not be warranted for a condition based on a presumptive basis, service connection may still be available on a direct basis based on presumed exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Also, the absence of evidence, without further explanation, cannot be relied on as evidence that a nexus is not warranted. This opinion is also inadequate because it did not comply with the Board's previous directive. It did not provide a secondary opinion as to whether the Veteran's kidney cancer was secondary to any of his service-connected disabilities. Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for bladder cancer is remanded. The Veteran filed for service connection for bladder cancer in March 2014. This claim was also remanded by the Board for a direct opinion based on presumed herbicide exposure and a secondary etiology opinion as to whether his bladder cancer was secondary to any of his service-connected disabilities. The July 2019 post remand opinion for this condition is inadequate as well. The examiner opined that the Veteran's bladder cancer was not incurred in service because bladder cancer is not a presumptive diagnosis for exposure to Agent Orange. Yet, as noted, relying on a condition not being a presumptive condition is not a sufficient rationale as direct causation may be established based on the Veteran's presumed herbicide exposure. Also, an opinion as to secondary service connection was not provided. Accordingly, this opinion, too, does not comply with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, a remand for an adequate addendum opinion is needed. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. After reviewing the record, the examiner is requested to provide the following opinions: (a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's melanoma cancer that had its onset during, or is otherwise related to, service? The examiner must specifically consider and note that inservice herbicide exposure is presumed. The opinion and rationale should reflect such consideration. The fact that malignant melanoma is not a disability presumed to be related to herbicide exposure is not sufficient, by itself, to serve as a rationale in this case. (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the malignant melanoma is proximately due to or the result of any service-connected disability? (c) If the answer to (b) is negative, is it at least as likely as not that the malignant melanoma is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities? (d) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If a negative opinion is offered based primarily on the absence of evidence inservice or after service, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current malignant melanoma is not related to service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 4. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. After reviewing the record, the examiner is requested to provide the following opinions: (a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's kidney cancer had its onset during, or is otherwise related to, service? The examiner must specifically consider and note that inservice herbicide exposure is presumed. The fact that kidney cancer is not a disability presumed to be related to herbicide exposure is not sufficient, by itself, to serve as a rationale in this case. (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the kidney cancer is proximately due to or the result of any service-connected disability? (c) If the answer to (b) is negative, is it at least as likely as not that the kidney cancer is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities? (d) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If a negative opinion is offered based primarily on the absence of evidence inservice or after service, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current kidney cancer is not related to service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 5. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. After reviewing the record, the examiner is requested to provide the following opinions: (a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's bladder cancer had its onset during, or is otherwise related to, service? The examiner must specifically consider and note that inservice herbicide exposure is presumed. The fact that bladder cancer is not a disability presumed to be related to herbicide exposure is not sufficient, by itself, to serve as a rationale in this case. (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the bladder cancer is proximately due to or the result of any service-connected disability? (c) If the answer to (b) is negative, is it at least as likely as not that the bladder cancer is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities? (d) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If a negative opinion is offered based primarily on the absence of evidence inservice or after service, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current bladder cancer is not related to service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.