Citation Nr: 21040879 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-47 796 DATE: July 7, 2021 REMANDED Entitlement to service connection for kidney condition, to include chronic renal disease, is remanded. Entitlement to service connection for poor circulation in the left lower extremity, to include peripheral vascular disease, is remanded. Entitlement to service connection for poor circulation in the right lower extremity, to include peripheral vascular disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1967 to June 1970, to include service in Vietnam. His decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in December 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for kidney condition, to include chronic renal disease, is remanded. The Veteran seeks to establish service connection for a kidney condition. He has asserted that his kidney condition is secondary to his service-connected heart condition. Alternatively, he contends that his kidney condition is the result of herbicide exposure in Vietnam. In December 2018, the Board remanded this matter, in part, to obtain a medical opinion as to whether it was at least as likely as not that the Veteran had a kidney condition that had its onset in, or was otherwise attributable to his period of active service, to include as a result of his exposure to herbicide agents. The Board also instructed the examiner to consider whether it was at least as likely as not that the Veteran's kidney condition was secondary to his service-connected heart condition. The Veteran was provided a VA examination in September 2019. The VA examiner confirmed a diagnosis of a congenital kidney disorder, presumably hydronephrosis, as well as chronic renal disease. The examiner proceeded to opine that it was less likely than not that the Veteran's kidney condition was the result of herbicide exposure or caused by or aggravated by his service-connected heart condition. In so doing, however, the examiner did not discuss the etiology, or provide a substantiative rationale, of his chronic renal disease. Instead, the examiner's evaluation appears singularly focused on the nature and etiology of the Veteran's hydronephrosis, and did not adequately address the chronic renal disease. The Board notes that chronic renal disease is not presumptively associated with herbicide exposure, including Agent Orange exposure. Although presumptive service connection cannot be granted for the Veteran's kidney disease, including chronic renal disease, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The examiner provided no rationale as why his chronic renal disease could not be directly related to herbicide exposure in Vietnam. As such, the matter must again be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for poor circulation in left lower extremity is remanded. 3. Entitlement to service connection for poor circulation in right lower extremity is remanded. The Veteran seeks service connection for poor circulation in bilateral lower extremities. He contends the condition is the result of parachute jumps in service. In December 2018, the Board remanded these matters, in part, to obtain a medical opinion as to whether it was at least as likely as not that the Veteran had bilateral lower extremity conditions as the result of parachute jumps in service. The Board also instructed the examiner to consider whether it was at least as likely as not that the Veteran's bilateral lower extremity condition was secondary to his service-connected heart condition or to his kidney condition. Therefore, the Board finds that development and decision of the Veteran's claim for service connection for a kidney condition could significantly impact a decision on the Veteran's claim for service connection for bilateral lower extremity conditions, and thus these issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The September 2019 VA examiner diagnosed the Veteran with atherosclerosis of arteries of the extremities and peripheral vascular disease. The examiner concluded that the Veteran's bilateral poor circulation in the lower extremities were less likely as not the result of parachute jumps, or caused by, a result of, or aggravated beyond its natural progression by the Veteran's service-connected heart condition or his kidney condition. The examiner noted that the medical literature is silent for hydronephrosis, the Veteran's congenital kidney condition, as a cause or risk factor for peripheral vascular disease, but she did not address the relationship between chronic renal disease and peripheral vascular disease. As such, the Board finds that the issues of entitlement to service connection for bilateral poor circulation of the lower extremities should be remanded as well. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 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 the VA examiner who prepared the September 2019 VA kidney examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's kidney condition, including chronic renal disease, had its onset in, or is otherwise attributable to, his period of active service, to include his in-service exposure to herbicide agents (notwithstanding the fact that such an association may not be presumed under the law). If it is the examiner's opinion that it is unlikely that the Veteran's kidney condition had its onset, or in otherwise directly attributable to service, the examiner should provide a further opinion as to whether it is at least as likely as not that the Veteran's kidney condition has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by his service-connected heart condition. 4. Additionally, arrange for the claims file to be reviewed by the VA examiner who prepared the September 2019 VA artery and vein condition examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's left lower extremity condition or the right lower extremity condition had its onset in, or is otherwise attributable to, his period of active service. If it is the examiner's opinion that it is unlikely that the Veteran's bilateral lower extremity condition had its onset, or in otherwise directly attributable to service, the examiner should provide a further opinion as to whether it is at least as likely as not that the Veteran's bilateral lower extremity condition has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by his service-connected heart condition or kidney condition, including chronic renal disease. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.