Citation Nr: 1808302 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-02 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for kidney cancer, including as a result of exposure to herbicides or as secondary to prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2013, the Board denied the claim for service connection for kidney cancer. In June 2013, the Veteran appealed the May 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2014 Order, the Court vacated the Board's May 2013 decision and remanded the matter for action consistent with the terms of a Joint Motion for Remand (JMR). The Veteran testified at a January 2013 videoconference hearing before a Veterans Law Judge (VLJ). A transcript of this hearing is of record. In March 2014, the Veteran was notified that the VLJ who held the January 2013 hearing was no longer with the Board and of his right to request another Board hearing. In April 2014, the Veteran requested another Board hearing. The Veteran testified at a September 2017 videoconference hearing before the undersigned. A transcript of this hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The parties to the JMR found that the VLJ who conducted the January 2013 videoconference hearing should have advised the Veteran to try to obtain the name of the doctor who provided him with an opinion regarding the cause of his kidney cancer and submit that information to the Board for consideration pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the VLJ conducting a hearing has the duty to fully explain the issues and to suggest the submission of evidence that may have been overlooked). Thereafter, in the September 2017 videoconference hearing, the undersigned suggested that the Veteran obtain a medical nexus opinion from one of his physicians linking his kidney cancer to his service, specifically his Agent Orange exposure, and held the record open for sixty days to obtain this additional evidence. As such, this issue has been satisfied. Further, the parties to the JMR found that the Board provided an inadequate statement of the reasons or bases for its denial of entitlement to service connection. They found that as the requirements under McLendon v Nicholson, 20 Vet. App. 79 (2006) had been satisfied, VA was required to provide the Veteran a VA medical examination to substantiate his claim. In addition, in a December 2010 letter, the Veteran contended that his kidney cancer was secondary to his service-connected prostate cancer. The record shows that a VA examination has not been scheduled. In light of the concerns expressed in the Joint Motion, the Board finds that a remand is warranted to afford the Veteran a VA examination. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding and relevant VA and/or private treatment records. 2. Thereafter, schedule the Veteran for a VA examination to address the nature and etiology of his kidney cancer. Provide the claims file, including a copy of this REMAND, to the examiner for review. All necessary tests and studies should be accomplished and all clinical findings reported in detail. In addressing the nature and etiology of the Veteran's kidney cancer, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's kidney cancer is related to his active duty service, to include his presumed Agent Orange exposure, or caused or aggravated by his service-connected prostate cancer. 3. Thereafter, readjudicate the claim. If the benefit sought is denied, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ Lesley A. Rein 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).