Citation Nr: 21036753 Decision Date: 06/16/21 Archive Date: 06/16/21 DOCKET NO. 12-11 368A DATE: June 16, 2021 ORDER Service connection for a renal disability (originally claimed as kidney disability) as secondary to service-connected bladder cancer, is granted. REMANDED Service connection for an eye disability, to include glaucoma and cataracts as secondary to service-connected diabetes mellitus, is remanded. FINDING OF FACT The evidence supports a finding that the Veteran's renal disability is a result of his service-connected bladder cancer. CONCLUSIONS OF LAW The criteria for service connection for a renal disability, to include as secondary to the Veteran's service-connected bladder cancer have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. He died in October 2014. His wife has been substituted as the claimant in this appeal. This appeal was previously before the Board in March 2020, and the service connection claims for a prostate disability and eye and kidney disabilities, claimed as secondary to diabetes mellitus, each to include on the basis of substitution and to include accrued benefits were denied. The Veteran appealed the decision to the United States Court of Appeals for Veteran's Claims (Court). The Veteran did not challenge the Board's decision as to the claim for service connection for a prostatae disability. The Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the March 2020 Board decision that denied the service connection claims for renal/kidney and eye disabilities, each claimed as secondary to service-connected diabetes mellitus. The Court noted that in its March 2020 decision, the Board had remanded the issues of: (i) entitlement to service connection for bladder cancer for accrued benefit purposes; and, (ii) entitlement to a TDIU rating for accrued purposes, and that these issues were not before the Court. These matters have returned to the Board for further appellate consideration. Upon remand, the RO in May 2020 granted service connection for bladder cancer. As such, issue is no longer on appeal. The claim for a TDIU remains pending at the RO, so is also not within the scope of the instant decision. 38 C.F.R. § 19.38. In May 2020, the RO granted service connection for bladder cancer with bladder removal and status post radical cystoproctostomy associated with herbicide exposure, and assigned an initial 80 percent evaluation, effective November 12, 2008. The Board finds that the service connection claim for bladder cancer is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). A misfiled document was discovered by the Board in this Veteran's claims file. The misfiled record consisted of an October 2010 notification letter . This misfiled record appears to have been mistakenly included in this Veteran's file, but does not appear to have had any impact in the instant appeal. Accordingly, action was taken by the Board in June 2021 to associate it with the correct Veteran's claims file. Service connection for a renal disability as secondary to service-connected bladder cancer, the basis of substitution and to include accrued benefits is granted. In a September 2020 opinion, a VA clinician opined that the Veteran's renal disorder was obstructive neuropathy due to his bladder cancer. The VA clinician noted that there was no evidence of renal disease while the Veteran was in service or proximate to service. The VA clinician maintained that an association between Agent Orange exposure and bladder cancer had been strongly suggested as referenced by medical evidence, the cause had not been established. Therefore, the VA clinician concluded that the Veteran's renal disorder was a result of his bladder cancer and treatment, and that it was less likely than not due to or incurred in events in service, including Agent Orange exposure. See September 2020 VA opinion. This opinion is supportive of the claim for service connection for a renal disability as secondary to the now service-connected bladder cancer. 38 C.F.R. § 3.310. There is no other opinion of record that refutes the VA examiner's conclusion. (Parenthetically, the Board observes that there are VA opinions of record that are against a finding of the Veteran's renal disability as secondary to the service-connected diabetes mellitus). Service connection for a renal disability (originally claimed as kidney disability) as secondary to service-connected bladder cancer, on the basis of substitution and to include accrued benefits is granted. REASONS FOR REMAND Service connection for an eye disability, to include glaucoma and cataracts as secondary to service-connected diabetes mellitus As previously mentioned, the Veteran's service connection claim for an eye disability, to include glaucoma and cataracts as secondary to service-connected diabetes mellitus was previously denied in the March 2020 Board decision. The Board's decision was remanded by the Court in November 2020 for compliance with a JMPR. The JMPR suggested that in denying the claim, the Board had relied on inadequate examinations of the Veteran in December 2010 and August 2019. Notably, the JMPR indicated that the December 2010 VA examiner's opinion was vague and did not contain a clear medical nexus opinion, as the Board's February 2019 remand had noted. The JMPR also noted that an August 2019 VA examiner's opinion--that in order for glaucoma "to be related to Type 2 diabetes[,]there would need to be a physiological development of diabetic retinopathy"--was unclear as to whether the opinion encompassed a discussion of aggravation. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In light of the concerns raised in the JMPR, a remand is necessary to obtain an addendum opinion that addresses the direct and secondary service connection theories of the claim for service connection for an eye disability, to include glaucoma and cataracts as secondary to service-connected diabetes mellitus. These matters are REMANDED for the following action: Obtain a medical opinion regarding the etiology of the Veteran's eye disability, notably glaucoma and cataracts. The examiner is asked to answer the following questions (a.) Is it at least as likely as not (probability of at least 50 percent) that any diagnosed eye disorder, claimed cataracts and glaucoma is related to service? Why or why not? (b.) Is it at least as likely as not (probability of at least 50 percent) that any diagnosed eye disorder, claimed as cataracts and glaucoma was caused or aggravated (made worse) by his service-connected diabetes mellitus? Why or why not? Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.