Citation Nr: 1807313 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-39 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to VA compensation under 38 U.S.C. § 1151 for residuals of kidney cancer, status post nephrectomy. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2014, the Board remanded the claim for a Board videoconference hearing. The Veteran failed to appear for the scheduled hearing in October 2015, and there is no evidence of record suggesting that she requested that the hearing be rescheduled. Accordingly, her hearing request is deemed withdrawn. By decision dated December 2015, the Board denied the claim. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court issued a Memorandum Decision that vacated the Board's decision as to the denial of the claim, and remanded the claim to the Board for further proceedings consistent with the Memorandum Decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The January 2010 VA examiner opined that the Veteran's renal cell carcinoma of the left kidney was not caused by any involved treating health care provider. Additionally, the examiner found that the Veteran's renal cell carcinoma did not get worse, and there was no additional disability caused, as a result of the delay in diagnosing the cancer. The examiner explained that the radiographic evidence showed the cyst to have been stable through 2008, meaning there was no change in appearance or size. The December 2008 magnetic resonance imaging (MRI) showed a progression, which resulted in the January 2009 nephrectomy and subsequent biopsy, which showed renal cell carcinoma. However, the cyst was shown to increase in size from June 2005 through December 2008. See June 2005 Computed Tomography (CT) scan, July 2006 ultrasound, July 2007 ultrasound, March 2008 CT scan, October 2008 ultrasound, and December 2008 MRI. Thus, this opinion appears to be based on an inaccurate factual premise, namely that the cyst had remained stable in appearance or size from 2005 to 2008. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Therefore, and consistent with the Court's May 2017 Memorandum Decision, an opinion must be obtained that addresses the progression of the cyst. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records pertaining to the Veteran for any residuals of kidney cancer from December 2012 to present. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning this claim. 2. Ask the Veteran to identify any additional treatments she has received for any residuals of kidney cancer. Make reasonable efforts to obtain any records identified and notify the Veteran of any negative responses and what further steps VA will make concerning her claim. 3. Schedule the Veteran for the appropriate examination with a physician addressing the Veteran's 38 U.S.C. § 1151 claim with respect to residuals of kidney cancer, status post nephrectomy. The examiner should review the claim file in conjunction with the examination. The examiner(s) should provide opinions as to the following: (a) (a) Identify the additional disability due to VA hospital care, medical or surgical treatment, or examination. (b) Whether it is at least as likely as not that the Veteran's renal cell carcinoma was caused by or became worse as a result of delay in proper diagnosis and/or treatment by fault of VA in furnishing the hospital care and medical or surgical treatment? (c) Whether it is at least as likely as not that any additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel? (d) Whether it is at least as likely as not that any additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider? (e) Whether it is at least as likely as not that failure on the part of VA to timely diagnose and/or properly treat the renal cell carcinoma allowed it to continue to progress? The examiner should review the Veteran's medical records, in particular the June 2005 CT scan, July 2006 ultrasound, July 2007 ultrasound, March 2008 CT scan, October 2008 ultrasound, and December 2008 MRI, that show growth of the cyst in the left kidney from June 2005 through December 2008. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MARJORIE A. AUER 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).