Citation Nr: 21064440 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-38 268 DATE: October 20, 2021 REMANDED Entitlement to service connection for kidney cancer, to include as secondary to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from April 1969 to April 1971, including service in the Republic of Vietnam from October 1970 to April 1971. He received the Combat Infantryman Badge, among other decorations for this service. In November 2019, the Board remanded the issue of service connection for kidney cancer, to include as secondary to herbicide exposure during service to have the Agency of Original Jurisdiction (AOJ) issue a Statement of the Case (SOC). In April 2020, the AOJ provided an SOC which continued the previous denial of service connection for kidney cancer, to include as secondary to herbicide exposure. The Board notes that a July 2021 rating decision, issued by a Department of Veterans Affairs (VA) AOJ, granted service connection for bladder cancer associated with herbicide exposure with a 100 percent evaluation effective November 24, 2015. The AOJ stated in the July 2021 rating decision that their decision represents a full and final determination of that issue on appeal and is therefore considered resolved in full. 1. Service connection for kidney cancer. The Veteran contends that his kidney cancer is related to his exposure to herbicide agents while serving in Vietnam. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has not been afforded examinations specifically for these claims for service connection. However, a medical examination is required only where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon, 20 Vet. App. at 83. First, the Veteran was diagnosed with kidney cancer in March 2016. See December 2016 VA examination. Second, the Veteran's exposure herbicide agents as a result of his military service in Republic of Vietnam has already been conceded. See 38 C.F.R. § 3.307(a)(6)(iii). Third, the Board notes that the third element of McLendon is a low threshold, requiring "only that the evidence 'indicates' that there 'may' be a nexus between the two. See McLendon, 20 Vet. App. at 83. Here, both the Veteran, in the July 2017 Notice of Disagreement (NOD), and the Veteran's representative, in the September 2021 Appellate Brief, indicate that the kidney cancer is related to exposure to herbicides during active service or alternatively suggest the service-connected PTSD caused smoking which caused the kidney cancer and provided links to treatises about both theories. See also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, given the low threshold for a finding in favor of the third element, the Board determines that the Veteran has satisfied this standard. Lastly, to date the Veteran has not been afforded with a VA medical opinion on whether his kidney cancer is related to service, to include as secondary to herbicide exposure. The Board notes that a December 2016 VA examination on the Veteran's kidney cancer was provided but it was not accompanied with a medical opinion. Therefore, the medical evidence is insufficient, as the record lacks an adequate opinion regarding the likelihood of a medical nexus between the in-service event (conceded exposure to herbicides) and a current disability (kidney cancer). See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."). As such, a remand is warranted to assist in determining the etiology of the Veteran's kidney cancer. The matter is REMANDED for the following action: Obtain a VA medical opinion on the nature and likely etiology of the Veteran's kidney cancer, to include as secondary to herbicide exposure. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. The examiner should provide a medical opinion on the following: a) whether it is as likely as not (50 percent or greater probability) that the kidney cancer is related to service, to include being caused or aggravated by in-service herbicide exposure. b) whether it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's service-connected PTSD caused or contributed to his smoking, which, in turn, caused or aggravated his kidney cancer? A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The examiner should note that it is inadequate to conclude that the kidney cancer is not related to service simply because it is not on VA's list of presumptive diseases associated with exposure to herbicides. The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.