Citation Nr: 21076066 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-56 832 DATE: December 22, 2021 REMANDED Entitlement to service connection for renal cancer status post right nephrectomy, to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for rectal cancer with residuals, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1953 to October 1973. This matter is on appeal to the Board of Veterans' Appeals (Board) from a September 2015 rating decision (the decision is dated in August 2015, but notice was not sent until the following month). In October 2019, the Veteran testified regarding this matter at a videoconference hearing before the undersigned. The transcript of the hearing has been associated with the record. In January 2020, the Board denied the Veteran's claim of entitlement to service connection for renal cancer and rectal cancer. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) contesting the Board's January 2020 decision. In its August 2021 decision, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the Board's denial of service connection for renal and rectal cancer. In its decision, the Court found the Board erred when it relied on inadequate VA medical opinions and for not providing adequate reasons or bases because it did not offer any analysis as to whether the relied-upon addendum opinions complied with its prior remand order. Specifically, the Court explained that the two VA medical opinions that the Board relied upon were issued by the same VA examiner but were conflicting opinions without addressing the previous one and the examiners only addressed presumptive service connection when it should have also addressed direct service connection. The Court also explained that in the January 2020 Board remand, the Board directed that an appropriate VA clinician render a new opinion, but that there was no analysis on whether the VA clinician was appropriate. 1. Entitlement to service connection for renal cancer status post right nephrectomy, to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus, is remanded. 2. Entitlement to service connection for rectal cancer with residuals, to include as due to herbicide exposure, is remanded. The January 2020 Board remanded requested for new VA medical opinions to address all applicable theories of entitlement for both issues. It requested for a VA clinician to render a new opinion concerning the Veteran's renal and rectal cancer residuals. For both diseases, the examiner was to opine as to whether it is at least as likely as not that either of the two diseases were related to his herbicide exposure during service and whether both diseases were at least as likely as not related to his military service directly. The examiner was also supposed opine as to whether it is at least as likely as not that the Veteran's rectal cancer was caused by or aggravated by his service-connected diabetes mellitus. The Veteran was afforded a VA examination in June 2020 where the examiner provided a positive nexus opinion and explained that the Veteran underwent a right nephrectomy in 1993, served in Vietnam, and was exposed to a carcinogenic herbicide therefore it is at least as likely as not that the Veteran's right nephrectomy due to cancer was due to herbicide exposure during service. The Veteran was afforded an addendum opinion in July 2020 where the same examiner from the June 2020 opinion determined that both of the Veteran's cancers were not part of the cancers indicated as caused by herbicide exposure and therefore it was less likely than not that the Veteran's two diseases were due to herbicide exposure during service. The Court found this opinion as inadequate as it relied entirely on the diseases not being listed for presumptive service connection and did not address whether they were directly service connected or not. Thus, a remand is warranted for an adequate VA medical opinion that addresses all theories of entitlement. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his renal cancer status post right nephrectomy and his rectal cancer with residuals. The examiner must review the claims file and must be an appropriate clinician to opine on these diseases. The examiner is asked to provide a response to the following: a. For the Veteran's renal cancer status post right nephrectomy is it at least as likely as not (a 50 percent or greater probability) related to his herbicide exposure during service? The examiner is advised that a negative opinion cannot be based solely on the fact that the renal cancer status post right nephrectomy is not on the list of diseases that are presumptively associated with exposure to herbicide agents. b. If the examiner finds that the Veteran's renal cancer is not related to his herbicide exposure during military service, then the examiner must opine on whether it is at least as likely as not related to his military service in general. c. For the Veteran's rectal cancer with residuals is it at least as likely as not (a 50 percent or greater probability) related to his herbicide exposure during service? The examiner is advised that a negative opinion cannot be based solely on the fact that the rectal cancer is not on the list of diseases that are presumptively associated with exposure to herbicide agents. d. Is rectal cancer with residuals at least as likely as not proximately due to service-connected diabetes mellitus? a. Is rectal cancer with residuals at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected diabetes mellitus? b. If the examiner finds that the Veteran's rectal cancer is not related to his herbicide exposure during military service nor is proximately due to nor aggravated by service-connected diabetes, then the examiner must opine on whether it is at least as likely as not related to his military service in general. c. Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.