Citation Nr: 1801649 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-06 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for renal (kidney) cancer as a result of exposure to herbicide agents. 2. Entitlement to service connection for esophageal cancer as a result of exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from July 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The nexus requirement for service connection may alternatively be satisfied if the Veteran was exposed to an herbicide agent in service and has a disease that is presumed to be associated with herbicide exposure. 38 U.S.C. § 1116(a)(2) (2012); 38 C.F.R. § 3.309(e) (2017). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). Here, VA has conceded herbicide exposure in its January 2013 rating decision. The disabilities the Veteran is seeking service connection for are not listed as diseases that are afforded presumptive service connection under 38 C.F.R. § 3.309(e). The unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence of record presents evidence indicating that the Veteran's disabilities may be due to his exposure to herbicide agents. A July 2012 note from the Veteran's private doctor noted the Veteran's exposure to Agent Orange in relation to his renal cancer. Accordingly, the Board concludes a VA examination is necessary to determine whether the claimed disabilities are directly related to herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his renal cancer and esophageal cancer. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such finding. The examiner must provide opinions as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's renal cancer is directly related to his herbicide agent exposure. It is insufficient for the examiner to provide a negative opinion merely because hypertension is not a condition on the presumption list for herbicide agents. b. Whether it is at least as likely as not that the Veteran's esophageal cancer is directly related to his herbicide agent exposure. It is insufficient for the examiner to provide a negative opinion merely because hypertension is not a condition on the presumption list for herbicide agents. The examiner must provide all findings, along with complete rationale for his or her opinion, in the examination report. If the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).