Citation Nr: 22012844 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 17-23 199 DATE: March 7, 2022 ORDER Entitlement to service connection for a kidney disability, to include as due to in service herbicide exposure, is denied. Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure, is denied. REMANDED Entitlement to service connection for a lung disability other than pharyngeal cancer, to include chronic bronchitis and emphysema and to include as due to in service herbicide exposure, is remanded. FINDINGS OF FACT 1. The persuasive weight of the evidence is against finding that the Veteran's kidney disability is causally or etiologically related to his active service, including his conceded in-service exposure to herbicides. 2. The persuasive weight of the evidence is against finding that the Veteran's hypertension is causally or etiologically related to his active service, including his conceded in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for a kidney disability, to include as due to in service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension, to include as due to in service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1968, including service in Vietnam. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that proceeding has been associated with the claims file. In February 2020, the Board reopened the Veteran's previously denied claims for service connection addressed herein and remanded the matter for further development. In May 2021, the Board again remanded this matter for further evidentiary development, to include obtaining VA opinions and to attempt to obtain any outstanding service treatment records (STRs). While a small portion of the Veteran's STRs were associated with the claims file in September 1991, the development following the May 2021 Board remand reveals that the remainder of his STRs are unavailable. See November 2021 VA Memo and November 2021 and December 2021 Final Attempt Letters. Accordingly, the finds there has been substantial compliance with this portion of the May 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a service connection claim. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more within one year after the Veteran's last in-service herbicide agent exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this case, presumptive service connection is not available for the Veteran's claims for service connection for a kidney disability and for hypertension, as neither are listed as presumptive conditions due to Agent Orange exposure. See 38 C.F.R. § 3.309(e). However, service connection may still be granted on a direct basis if it is shown that the Veteran's disability is due to, or was caused by, his in-service exposure to herbicide agents. Combee v. Brown, 5 Vet. App. 248 (1993). VA administers the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Kidney Disability The Veteran contends that he has a kidney disability related to his military service, to include as due to his in-service herbicide exposure. His record reflects service in Vietnam from April 1967 to April 1968, and his exposure to herbicide agents during service is, thus, presumed. Available STRs do not reflect any complaints of, or treatment for, a kidney disability. The Veteran has been diagnosed with multiple kidney disabilities, including kidney cancer, or neoplasm of the kidney, kidney removal, and chronic kidney disease. See April 2020 VA Examination. The question is whether these disabilities are related to the Veteran's active duty, to include his conceded in-service herbicide exposure. Unfortunately, after a thorough review of the claims folder, the Board concludes that the weight of the evidence is against finding that the Veteran's kidney disability is causally or etiologically related to his military service. Private and VA medical treatment records reflect a diagnosis of, and treatment for, renal cancer in 2000 and a right radical nephrectomy in June 2000 followed by a diagnosis of chronic kidney disease in November 2016. A VA examination was obtained in April 2020, which included diagnoses of neoplasm of the kidney, kidney removal, and chronic kidney disease. The examiner opined it was less likely than not that the Veteran's kidney disability is related to his active service, to include his exposure to herbicide agents. The examiner only indicated that there was no documentation found that kidney disease is due to active service and that a nexus had not been established. This opinion is inadequate, as the examiner failed to consider the Veteran's contentions and herbicide exposure in providing an opinion. The opinion was circular in nature, and the examiner did not include adequate rationale for the opinion provided. An addendum opinion was obtained in February 2021. The examiner again opined that the Veteran's kidney disability was less likely than not related to his active service, to include as due to exposure to herbicide agents. The examiner indicated that the medical research does not support any etiological link, that there was no documentation to link the Veteran's kidney disability to his active service, and that a nexus has, thus, not been established. Like the April 2020 examination, the Board finds the February 2021 addendum to be similarly flawed, as the opinion was circular in nature and largely lacking rationale. The May 2021 Board remand directed the RO to obtain a VA opinion addressing the etiology of the Veteran's kidney disability, given the inadequacies of the April 2020 VA examination and February 2021 addendum. A VA opinion was obtained in July 2021, which the Board finds to be adequate for adjudication purposes and complete in its rendering. As such, the Board finds substantial compliance with the May 2021 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The July 2021 VA examiner recorded the Veteran's medical history and opined that it was less likely than not that the Veteran's kidney condition was related to his military service. The examiner noted that there was no evidence of a kidney condition while in service, at separation or proximate to service. The examiner indicated a review of medical literature and studies in opining that renal cell carcinoma has not been associated with Agent Orange exposure. The examiner reviewed peer-reviewed literature and articles and found that no association has been written of confirming Agent Orange as a cause of renal cell carcinoma. The examiner also explained that any current renal dysfunction of the remaining kidney is more likely than not related to the nephrectomy and decreased filtration capacity caused by the absence of one kidney. Overall, the examiner opined that it less likely than not that the Veteran's kidney disability is related to his service, including his conceded in-service herbicide exposure. The most competent evidence of record does not demonstrate a causal or etiological link between the Veteran's kidney disabilities and his military service, to include his conceded in service herbicide exposure. The Board assigns significant weight to the July 2021 VA opinion, as the examiner fully addressed the Veteran's claim. The examiner fully considered the Veteran's Vietnam service, in service herbicide exposure, and contentions and also referenced both the Veteran's contentions and medical literature in providing rationale for the provided opinion. While the Veteran is competent to report his symptoms and to express his belief that his current disability is related to his service, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion linking his current disability to his service, and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board finds the medical evidence of record to be more probative in finding that the Veteran's current kidney disability is not related to his active service, as such was based on an examination of the Veteran and a review of the claims file by an examiner with the requisite expertise for making such a determination. The July 2021 VA opinion is not contradicted by other competent, credible evidence of record, and the opinion provided therein does not support the Veteran's service connection claim. The record does not support the claim for service connection for a kidney disability. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the evidence persuasively weighs against the claim, it must be denied. Hypertension The Veteran contends that he has hypertension related to his active duty, to include his in-service herbicide exposure. As noted above, his exposure to herbicide agents in service is presumed. His available STRs do not reflect any complaints of, or treatment for, hypertension during service. He reported high or low blood pressure on his July 1968 separation report of medical history, but no finding of high blood pressure or hypertension was found at the time of separation, when his blood pressure was measured at 116/78. The Veteran has been diagnosed with hypertension. See April 2020 VA Examination. The question is whether this disorder is related to his active duty, to include his conceded in-service herbicide exposure. Unfortunately, after a thorough review of the claims file, the Board finds that the weight of the evidence is against finding that his hypertension is causally or etiologically related to his active duty. The Veteran's private and VA medical treatment records reflect treatment for high blood pressure in February 1992 prior to a later diagnosis of hypertension indicated on the Veteran's April 2020 VA examination. After providing a diagnosis of hypertension, the April 2020 VA examiner opined that it was less likely than not that the Veteran's hypertension is related to his active service, to include his exposure to herbicide agents. The examiner recorded the Veteran's medical history and his belief that his hypertension onset in 1967, when he reported frequent feelings of dizziness with ongoing worsening of abnormal elevations in blood pressure. The examiner opined that it was less likely than not that the Veteran's hypertension is related to his active service, to include the exposure to herbicide agents as there was no evidence found in the available records of diagnosed hypertension due to such exposure. The examiner indicated that the Veteran's blood pressure was normal in the early 1990's and that indications of hypotension (low blood pressure) were given in October and November 2020. As such, the examiner indicated that it was less likely than not that the Veteran's current hypertension was consistent with his herbicide exposure or with the treatment for hypertension or chronic bronchitis during service and, therefore, a nexus had not been established. The Board finds the April 2020 opinion to be less probative, as the examiner did not appear to give adequate consideration to the Veteran's contentions or appear to adequately consider whether his exposure to herbicide agents could have caused his hypertension. An addendum opinion was obtained in February 2021. The examiner again opined that the Veteran's hypertension was less likely than not related to his active service, to include as due to exposure to herbicide agents. The examiner found there was no evidence found in the available records of diagnosed hypertension due to or caused by exposure to herbicide agents. The examiner noted that, while recent studies have found an association between high exposure to herbicides and hypertension, those studies did not account for risk factors of hypertension or that hypertension can develop as secondary to other issues. Based on a review of the Veteran's claims file, the examiner noted the Veteran had known risk factors for developing hypertension, including a history of smoking, alcohol use, and a family history of hypertension. The examiner opined that, given the multifactorial etiology involved in the development of hypertension, it was less likely than not that the Veteran's hypertension was incurred in or caused by his military service, to include as due to his herbicide exposure. Although the February 2021 examiner provided a more thorough explanation of the development of hypertension and the Veteran's risk factors, the examiner did not appear to give much consideration to whether the Veteran's hypertension could have been caused by his in-service herbicide exposure, which renders the opinion of less probative value. The May 2021 Board remand directed the RO to obtain a VA opinion addressing the etiology of the Veteran's hypertension, given the inadequacies of the April 2020 VA examination and February 2021 addendum. The Board specifically requested that the examiner address a recent report by the National Academy of Science (NAS) wherein the NAS found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides and upgraded the association from having "limited or suggestive evidence" to the category of "sufficient" evidence of an association. A VA opinion was obtained in July 2021, which the Board finds to be adequate for adjudication purposes and complete in its rendering. As such, the Board finds substantial compliance with the May 2021 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The July 2021 VA examiner recorded the Veteran's medical history and opined that it was less likely than not that the Veteran's hypertension was related to his military service. The examiner noted that there was no evidence of hypertension while in service or at separation and the first evidence of treatment for hypertension years after service. As such, the examiner opined that it was less likely than not that the Veteran's hypertension was due to events in service or had its nexus in service, including as due to herbicide exposure. The examiner reviewed the NAS study as requested by the May 2021 Board remand and indicated that the study did not establish a cause and the current, widely accepted, peer-reviewed literature has not established Agent Orange exposure as a cause of hypertension. Overall, the examiner opined that it less likely than not that the Veteran's hypertension had its nexus in service, including as due to his herbicide exposure. The most competent evidence of record does not demonstrate a causal or etiological link between the Veteran's hypertension and his military service, to include his presumed in service herbicide exposure. The Board assigns significant weight to the July 2021 VA opinion, as the examiner fully addressed the Veteran's claim. The examiner fully considered the Veteran's Vietnam service, in service herbicide exposure, and contentions and also referenced both the Veteran's contentions and medical literature in providing rationale for the provided opinion. Additionally, while the February 2021 VA addendum opinion is partially flawed, the examiner extensively discussed the risk factors in the development of hypertension and addressed the facts of the Veteran's specific medical history. While the Veteran is competent to report his symptoms and to express his belief that his current disability is related to his service, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion linking his current disability to his service, and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board finds the medical evidence of record to be more probative in finding that the Veteran's hypertension is not related to his active service, as such was based on a review of the claims file by an examiner with the requisite expertise for making such a determination. The July 2021 VA opinion is not contradicted by other competent, credible evidence of record, and the opinion provided therein does not support the Veteran's service connection claim. The record does not support the claim for service connection for hypertension. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the evidence persuasively weighs against the claim, it must be denied. REASONS FOR REMAND Service connection for a lung disability other than pharyngeal cancer, to include chronic bronchitis and emphysema and to include as due to in-service herbicide exposure In May 2021, the Board remanded the Veteran's claim for service connection for a lung disability other than pharyngeal cancer for the issuance of a Supplemental Statement of the Case (SSOC). See Manlincon v. West, 12 Vet. App. 238 (1999). This was accomplished with the issuance of a SSOC in December 2021. The prior February 2020 Board remand directed the RO to obtain a VA examination addressing the nature and etiology of the Veteran's lung disability, as a VA examination with an etiological opinion had not yet been obtained. While the Board regrets the additional delay, the Board finds a remand is necessary to obtain an additional, adequate VA medical opinion. Although a positive nexus opinion was provided by the April 2020 VA examiner for the Veteran's pharyngeal cancer, the examiner failed to address adequately the additional respiratory disabilities, including chronic bronchitis and emphysema, in providing an opinion. In addressing the Veteran's chronic bronchitis and emphysema, the examiner only noted that there was no documentation found of complaints and treatments of such during service and such are unrelated to service. Of note, however, the Veteran's available STRs do note a history of bronchitis reported in July 1968 with symptoms of shortness of breath. The April 2020 VA examiner wholly failed to consider whether the Veteran's other lung disabilities were related to his service, to include whether such are due to the Veteran's in-service herbicide exposure. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Board finds that the April 2020 VA examination is inadequate and that, as a result, there has not been substantial compliance with the February 2020 Board remand and corrective action is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an additional VA opinion should be obtained to assess the etiology of the Veteran's lung disabilities other than pharyngeal cancer, to include chronic bronchitis and emphysema and to include whether such is due to his conceded in-service herbicide exposure. Accordingly, this matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed lung disabilities, other than pharyngeal cancer, are related to his military service, to include as due to in-service herbicide exposure. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner is asked to do the following: Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diagnosed lung disability(ies) (other than pharyngeal cancer) onset in, or is (are) otherwise related to, his military service, to include his conceded in-service herbicide exposure. In other words, are the Veteran's current lung disabilities (other than pharyngeal cancer) consistent with his report of, and treatment for, chronic bronchitis during service? The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion requested herein. Rationale for all opinions expressed must be provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.