Citation Nr: 21007371 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-21 494 DATE: February 9, 2021 REMANDED Entitlement to service connection for a renal cell carcinoma disability, to include as due to conceded herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1965 to June 1967. In August 2013 and March 2017, the Board remanded the issue on appeal for additional evidentiary development and in July 2018 the issue was denied by the Board. The Veteran appealed the July 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated on June 19, 2019 granted the motion and remanded the case to the Board, which the Board denied on the merits in a December 2019 decision. The Veteran appealed the December 2019 Board decision to the Court. The parties filed a JMR and an Order of the Court dated on August 20, 2020 granted the motion and remanded the case to the Board. The case has been returned to the Board for appellate review. Entitlement to service connection for a renal cell carcinoma disability, to include as due to conceded herbicide exposure Since the December 2019 Board decision, review of the record shows the Agency of Original Jurisdiction (AOJ) has conceded the Veteran’s exposure to herbicides during his period of active nautical service in the eligible offshore waters of the Republic of Vietnam, as noted in a February 2020 VA memo and May 2020 VA rating decision. See 38 C.F.R. § 3.307 (2019); see also Procopio v. Wilkie, 913 F.3d 1371, 1376 (2019). The Board acknowledges that while exposure to herbicides is conceded, as in this case, renal cell carcinoma is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), thus consideration of service connection for this disability on appeal on a presumptive basis due to herbicide exposure is not warranted in this case. However, direct service connection remains available. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). In light of the August 2020 JMR and the Veteran’s contentions in this case, the Board finds that an addendum VA medical opinion is needed to determine the existence and etiology of the Veteran’s renal cell carcinoma disability on a direct basis, to include consideration of his presumed in-service herbicide exposure. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the etiology of the Veteran’s renal cell carcinoma disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume the Veteran’s in-service herbicide exposure is true, as conceded by VA in a February 2020 VA memo and the May 2020 VA rating decision. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s renal cell carcinoma disability began during active service or is related to an incident of service, to include the presumed in-service herbicide exposure. Note - It is not sufficient to provide an opinion that the Veteran’s renal cell carcinoma is not directly due to herbicide exposure merely because it is not on the list of diseases and conditions presumptively linked with herbicide exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.