Citation Nr: 18158383 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-49 192 DATE: December 14, 2018 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for renal cell carcinoma, status post right nephrectomy and to that extent only, the claim is granted.. REMANDED Entitlement to service connection for renal cell carcinoma, status post right nephrectomy, is remanded. FINDING OF FACT New and material evidence has been received to reopen a previously finally denied claim for service connection for renal cell carcinoma. CONCLUSION OF LAW 1. The May 2003 rating decision that denied service connection for renal cell carcinoma, status post right nephrectomy, is final. 38 U.S.C. §§ 5108, 7104, 7105. 2. New and material evidence has been received to reopen a previously finally denied claim for service connection for renal cell carcinoma. 38 U.S.C. § 5108, 5103A, 5107; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to April 1972. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Chicago Regional Office (RO). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). A May 2003 rating decision denied service connection for renal cell carcinoma, status post right nephrectomy, because there was no scientific or medical evidence to support the conclusion that the condition at issue was associated with herbicide agent exposure. The Veteran was notified of this decision in a May 2003 letter. That rating decision became final in May 2004 when the Veteran did not perfect an appeal in a timely manner. In August 2015, the Veteran submitted a statement that his VAMC physician told him that his kidney carcinoma could be caused by herbicide agent exposure. The Veteran has also submitted VA medical records from December 2016 in which a clinical pharmacy specialist states that the Veteran had his prostate and one kidney removed secondary to cancer related herbicide agent exposure. The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). As the medical statement is presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the new evidence is also material. As new and material evidence has been received, the claim for service connection for renal cell carcinoma, status post right nephrectomy, is reopened. REASONS FOR REMAND 1. Service connection for renal cell carcinoma, status post right nephrectomy, is remanded. The claim for service connection for renal cell carcinoma, claimed as the result of herbicide agent exposure, has been reopened. Although the Board regrets the delay, the Board finds that further development is needed before the claim can be adjudicated. The Veteran contends that service connection for renal cell carcinoma is warranted as the claimed disability was incurred secondary to presumed herbicide agent exposure while serving in the Republic of Vietnam. He has submitted a medical record that implies a connection between his renal cell carcinoma and in-service herbicide agent exposure and a written lay statement indicating that his primary care physician supports the link between the two. The Veteran has not been provided a VA renal examination which addresses the relationship, if any, between renal cell carcinoma and presumed in-service herbicide agent exposure. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because the Veteran may have a present disability that may be related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of the renal cell carcinoma. The VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. The Veteran has stated that he was told by a physician that his renal cell carcinoma was related to herbicide agent exposure during service. The Veteran is encouraged to obtain a written statement from that physician opining as to the etiology of the Veteran’s renal cell carcinoma and its relationship, if any, to active service including the Veteran’s presumed exposure to herbicide agents while in the Republic of Vietnam. That statement must provide a rationale for all opinions provided. The physician should opine whether it is at least as likely as not (50 percent probability or greater) that diagnosed renal cell carcinoma had its onset during active service, or within one year following separation from service, or is related to any incident of service, including the Veteran’s presumed exposure to herbicide agents while in the Republic of Vietnam. 2. Ask the Veteran to provide the names, addresses, and approximate dates of any pertinent, outstanding treatment records of all providers, both VA and private, who treated him for renal cell carcinoma. The request should include any treatment from the patient’s primary care physician. After securing any necessary releases, request any relevant records identified which are not duplicates of those contained in the claims file. All records and responses received should be associated with the claim files. 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, if any. 3. Schedule the Veteran for a VA examination to determine the etiology of renal cell carcinoma and its relationship, if any, to active service including the Veteran’s presumed exposure to herbicide agents while in the Republic of Vietnam. A rationale for all opinions should be provided. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that diagnosed renal cell carcinoma had its onset during active service, or within one year following separation from service, or is related to any incident of service, including the Veteran’s presumed exposure to herbicide agents while in the Republic of Vietnam. In providing each requested opinion, the examiner must consider and discuss all medical and other objective evidence, including any statement provided by the Veteran’s primary care physician, and the lay assertions of the Veteran. If the lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk