Citation Nr: 22016704 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-58 708A DATE: March 23, 2022 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a kidney disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1974 to June 1977, to include service in Korea, with apparent periods of inactive duty training in 1977 and 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. In January 2019, the Board, in pertinent part, reopened the previously denied claims for service connection for hypertension and a kidney disability and remanded the claims to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the claims and returned the case to the Board. In June 2020, the Board denied both claims on the merits. The Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 memorandum decision, the Court, in relevant part, vacated the Board's decision insofar as the Board denied service connection for hypertension and a kidney disability and remanded those issues to the Board for further development and readjudication. In November 2021, the Board remanded the case to the AOJ for additional development consistent with the Court's decision. After taking further action, the AOJ again confirmed and continued the prior denials and returned the case to the Board. Although the Board regrets the additional delay, the issues on appeal must again be remanded to ensure that there is a complete record upon which to decide the Veteran's claims and to afford him every possible consideration. 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a kidney disability is remanded. In its April 2021 decision, the Court found prior VA medical opinions obtained in January 2020 in connection with the Veteran's claims for service connection for hypertension and a kidney disability to be inadequate. Specifically, the Court found that the opinions were not supported by sufficient rationale. In November 2021, the Board remanded the case for new medical opinions. Pursuant to the remand instructions, the AOJ obtained new opinions later that same month. As to the kidney disability, the examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner's rationale was that the Veteran did not have symptoms or any diagnosis of renal dysfunction or kidney cyst in service, or within one year post service. The examiner went on to state that renal impairment and renal cysts were common within the general population. As for hypertension, the examiner also opined that the Veteran's hypertension was less likely than not related to service. The examiner observed that there was no evidence of a diagnosis of hypertension in service or a manifestation of such within one year of separation. The examiner also found that hypertension was less likely than not related to the Veteran's claimed herbicide exposure. The examiner noted the National Academy of Science's (NAS) finding of limited or suggestive evidence of a relationship between hypertension and exposure to herbicide agents, but found that there was no nexus because hypertension was not considered a presumptive condition. The examiner went on to provide alternative risk factors for the Veteran's hypertension, including male sex, race, family history, smoking history, and obesity. The Board finds that the November 2021 opinions are not entirely complete for adjudication purposes. First, in regard to the kidney disability claim, the VA examiner did not clearly explain why renal cysts and renal impairment being common in the general population made a nexus to service in this particular Veteran's case less likely. As to hypertension, the VA examiner also did not clearly explain why the Veteran's hypertension risk factors (including age, sex, family history, smoking, and obesity) made a nexus in this particular Veteran's case less likely. The examiner also did not discuss the Veteran's assertion that he developed and received treatment for tuberculosis in service, and his hypertension is a result of the tuberculosis. See December 2016 VA Form 9; Appellant's Informal Brief filed with the Court, dated in October 2020. In this regard, a December 2019 VA examiner noted that during the Veteran's military service, he had a positive tuberculosis skin test, which was treated prophylactically from January 1978 to January 1979. Finally, in providing a negative opinion as to herbicide exposure, the examiner did not discuss the Veteran's claim of incidental exposure to herbicide agents through contact with people and equipment returning from Vietnam. In light of the foregoing, another remand is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998). These matters are REMANDED for the following action: 1. Make arrangements to have the VA examiner who previously provided opinions in this case in November 2021 review the record and provide a supplemental report with respect to the etiology of the Veteran's hypertension and kidney disability. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner is asked to supply an addendum to her prior opinions, responding to each the following: (a.) Whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hypertension had its onset in service, had its onset within one year of separation from service, or is otherwise related to his period of service, to include his claimed exposure to herbicide agents? (b.) Whether it is at least as likely as not that any diagnosed kidney disability had its onset in service, within one year of separation from service, or is otherwise related to the Veteran's period of active service, to include his claimed exposure to herbicide agents? In addressing these questions, the examiner is asked to explain why, as set out in the examiner's prior report, renal cysts and renal impairment being common in the general population make a nexus to service in this particular Veteran's case less likely. The examiner should also explain why, as set out in the examiner's prior report, the Veteran's hypertension risk factors (including age, sex, family history, smoking, and obesity) make a nexus to service in this particular Veteran's case less likely. In addition, the examiner is asked to provide some further discussion of the National Academy of Sciences Institute of Medicine's conclusion that there is "sufficient evidence of an association" between herbicide exposure and hypertension. See NAS, Veterans & Agent Orange: Update 11 (2018). Specifically, the examiner is asked to address the Veteran's claim that he was incidentally exposed to herbicide agents through contact with people and equipment returning from Vietnam (rather than on the basis of having served in Vietnam). In this regard, the examiner is advised that the absence of a disability from the list of presumptive conditions which are presumed by VA to be the result of exposure to herbicide agents is not, by itself, a sufficient explanation for a negative nexus opinion. Finally, the examiner is asked to address the Veteran's contention that he developed and received treatment for tuberculosis in service, and his claimed disabilities are a result of that treatment. See December 2016 VA Form 9; October 2020 Appellant's Informal Brief. If the November 2021 examiner is no longer employed by VA, or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.