Citation Nr: 21068830 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-34 922 DATE: November 15, 2021 REMANDED Entitlement to service connection for kidney cancer, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1967 to September 1969, to include service in the Republic of Vietnam. This case was previously before the Board in May 2021 and remanded for additional development. The claim is back before the Board for further appellate proceedings. Unfortunately, the Board finds remand is necessary for further development. The Veteran has a diagnosis of kidney cancer. See August 2021 VA examination report. Exposure to herbicide agents has been conceded. See May 2021 Board remand. As such, the central issue in this case centers on whether the Veteran's kidney cancer is etiologically related to his active service, to include his conceded exposure to herbicide agents. Pursuant to the May 2021 Board remand, the Veteran attended an August 2021 VA examination. The examiner concluded that the Veteran's kidney cancer was less likely than not incurred in or caused by his active service, including exposure to herbicide agents. See August 2021 VA examination report. The examiner provided the following rationale: "No obvious proof of causality. Not on Agent Orange presumptive list. No records that reflect a development of abnormal Kidney Disease while in service. Therefore kidney cancer less likely due to service." Id. The Board finds that the August 2021 VA opinion is inadequate. First, the examiner essentially concluded that the Veteran's kidney cancer was not due to herbicide exposure because kidney cancer was not on the presumptive list. However, a medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (i.e., is not listed in 38 C.F.R. § 3.309) is inadequate. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). A clinician cannot conclude that a disability cannot be associated with herbicide exposure simply because it is not on the list of presumptive service-connected diseases. Further, the only other basis for the August 2021 examiner's negative opinion was the fact that the Veteran's service treatment records (STRs) did not reflect a development of kidney disease while in service. However, a medical opinion based solely on the absence of documentation in the record is inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, the Board finds that the August 2021 VA examination and opinion is inadequate, and another remand is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records related to the Veteran's kidney cancer and associate the same with the claims file. 2. Thereafter, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's kidney cancer, to include presumed exposure to herbicide agents. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. After a thorough review of the record, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's kidney cancer was incurred in or is otherwise related to his time in service, to include his conceded exposure to herbicide agents? The reviewing clinician should draw on his or her medical knowledge and a full and complete rationale for his or her opinion must be provided; a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The reviewing clinician should note the Veteran was exposed to herbicide agents for VA purposes; therefore, only a nexus opinion is needed. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the reviewing clinician must provide the reasons why an opinion would require speculation. As such, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, Associate Counsel 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.