Citation Nr: 22018595 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-51 758 DATE: March 29, 2022 REMANDED Entitlement to service connection for a kidney disorder, to include as secondary to service-connected deep vein thrombosis (DVT) and prostate cancer, is remanded. Entitlement to service connection for a lung disorder, to include as due to herbicide exposure and as secondary to service-connected DVT and prostate cancer, is remanded. Entitlement to a total disability evaluation based upon individual unemployability based upon service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1969 to May 1971 and from January 1991 to March 1991. He served in the Republic of Vietnam from September 1970 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2015 and July 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a hearing before a Veterans Law Judge regarding the claim for TDIU. A transcript has been associated with the claims folder. However, the Veterans Law Judge who held the December 2016 hearing is no longer employed by the Board. The Veteran then testified at another hearing before the undersigned Veteran Law Judge in March 2020 regarding the issues identified above. A transcript is of record. The Board remanded the case for further development in August 2020. The case has since been returned to the Board for appellate review. The Board also notes that the Veteran's appeal had originally included the issues of entitlement to service connection for deep vein thrombosis (DVT) and pulmonary embolism. However, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for those disabilities in a January 2021 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). As such, the matters are no longer in appellate status and are no longer before the Board. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Upon review, the Board finds that additional development is needed prior to adjudication of the issues remaining on appeal. Initially, the Board notes that there appears to be medical records that are outstanding from Methodist Hospital from February 24, 2018, to February 26, 2018. In this regard, a request was sent to that facility for treatment records dated in November 2014 and February 2018. The hospital sent the requested records to VA via CD in July 2021; however, internal notes indicate that the CD was unscannable, as the hospital had not sent a password necessary to access the records. It does not appear that the AOJ attempted to contact the facility for a password, and although the November 2014 records are already associated with the claims file, the February 2018 treatment records are included. Thus, a remand is necessary to obtain any outstanding records. Moreover, the Board notes that the Veteran was provided VA examinations in January 2021 in connection with the claims for service connection for a kidney disorder and a lung disorder. However, the medical opinions are conclusory and not supported by adequate rationale. Therefore, the Board finds that additional medical opinions are needed. In addition, the Board notes that the AOJ did not address the issue of entitlement to a lung disorder in the January 2021 supplemental statement of the case (SSOC). As such, upon remand, if the Veteran's claims are not granted, the AOJ should ensure that the SSOC addresses all issues on appeal. The Board further finds that the Veteran's TDIU claim is inextricably intertwined with the claims being remanded herein, as these claims could affect the outcome of the TDIU claim. For this reason, the service connection issues must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Therefore, a remand is required for the Agency of Original Jurisdiction (AOJ) to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his kidney and lung disorders, to include taking any necessary steps to obtain the outstanding February 2018 medical records from Methodist Hospital. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the AOJ should obtain a VA medical opinion to determine the nature and etiology of any lung disorder that may be present, to include any asthma or COPD. A physical examination is only needed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. It should be noted that the Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, during his military service. It should also be noted that the Veteran has already been service connected for a pulmonary embolism; as such, the VA medical opinion should address lung disorders other than a pulmonary embolism. The examiner should opine as to whether it is at least as likely as not that the Veteran has a lung disorder that is related to his military service, to include his herbicide exposure therein (regardless of the fact that such an association may not be presumed). The examiner should also opine as to whether it is at least as likely as not that the Veteran has a lung disorder that was either caused by or aggravated by his service-connected prostate cancer, to include the radiation treatments performed due to prostate cancer, and/or his DVT. (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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After obtaining any outstanding medical records, the AOJ should obtain a VA medical opinion to determine the etiology of any kidney disorder that may be present. A physical examination is only needed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a kidney disorder that is related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a kidney disorder that was either caused by or aggravated by his service-connected prostate cancer, to include the radiation treatments for that disorder, or his DVT. (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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should ensure compliance with the foregoing directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.