Citation Nr: 1753834 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 12-27 218A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for kidney cancer, status post right kidney nephrectomy, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. The appeal to the Board of Veterans' Appeals (Board) arose from an April 2010 rating decision in which the RO denied service connection for kidney cancer, status post right nephrectomy, claimed as due to exposure to Agent Orange. In August 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in September 2012 and the Veteran perfected his appeal with the filing of a substantive appeal l (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2012. In August 2015, the Board remanded the claim on appeal for a Board videoconference hearing.. In July 2017, the requested hearing was held before the undersigned Veterans' Law Judge . A transcript of the hearing has been associated with the claims file. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. REMAND The Board's review of the claims file reveals that additional action in this appeal, prior to appellate consideration, is warranted. The Veteran contends that his kidney cancer is due to, or the result of, his in-service exposure to Agent Orange while serving in Vietnam. Having established service connection for a variety of other disabilities, the Veteran has been afforded numerous VA examinations over the years. However, no VA examination to obtain a medical opinion in connection with the kidney cancer has been sought. The record contains one medical opinion regarding kidney cancer. Said opinion, titled "Renal Cell Carcinoma Treatment Summary," was written by a Urology nurse practitioner at the VA Palo Alto Urology Service at the request of the Veteran in September 2017. The author concluded that despite kidney cancer not being on the list of conditions presumed to be related to Agent Orange exposure, Agent Orange is a "rainbow' herbicide agent known to be contaminated with dioxin. Moreover, because dioxin is classified by the Environmental Protection Agency (EPA) as a likely human carcinogen, it is his medical opinion that the Veteran's renal cell carcinoma is more likely than not related to his exposure to Agent Orange. It is unclear from the record, however, whether the author ever examined the Veteran in order to proffer the opinion provided. Additionally, medical records following the Veteran's right kidney nephrectomy in April 2009 indicate that his left kidney was "red-brown and unremarkable with no gross lesions identified." The Board finds that, notwithstanding the medical opinion evidence of record, two questions raised in the record and essential to abjudication of the claim on appeal remain unresolved: whether the Veteran currently has cancer and/or any current cancer residuals and whether the cancer is in any way related to in-service injury or disease, to include presumed Agent Orange exposure therein. Hence, the evidence currently of record is inadequate, , and a remand of this matter for examination and opinion by an appropriate physician-preferably, an oncologist-is needed to resolve the claim on appeal. See 38 U.S.C. § 5103A (2012); ; 38 C.F.R. § 3.159 (2017; McLendon v. Nicholson, 20 Vet. App. 79 (2006).The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655 (2017). Prior to obtaining further medical findings/opinion in connection with this claim, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include records of evaluation and/or treatment of the Veteran from VA Medical Centers (VAMCs) in Palo Alto and Oakland, California. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (to include as regards private (non-VA) records), explaining that he has a full one-year period for response. See 38 U.S.C.. § 5103(b)(1) (2012); but see 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.. §§ 5103, 5103A ( 2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Palo Alto VAMC and Oakland VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran . Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the claim on appeal that is not currently of record. Specifically, request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination from an appropriate physician, preferably an oncologist, to obtain medical information as to the current nature and etiology of the claimed kidney cancer. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly indicate whether the Veteran currently has, or at any time pertinent to the current claim has had, kidney cancer (even if now asymptomatic or resolved). and any kidney cancer residuals. If so, the examiner should then render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran' kidney cancer had its onset in or is otherwise medically related to service, to particularly his presumed in-service exposure to Agent Orange while serving in Vietnam. In addressing the above the physician must consider and discuss all medical and other objective evidence of record, to include the September 2017 VA nurse practitioner's opinion. The physician must also consider and discuss all lay assertions, to include the Veteran's assertions as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of kidney cancer during service or for years after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report events, injuries and symptoms, and that his assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached (to include identification of the facts and medical authority supporting such conclusions) must be provided. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2017).