Citation Nr: 21021147 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 10-18 475 DATE: April 9, 2021 REMANDED Entitlement to service connection for renal cancer with right nephrectomy, to include as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1964 to July 1988. This matter has previously been before the Board in December 2017, October 2019, and October 2020. The October 2020 Board remand directives included obtaining private medical records and forwarding the claims folder to an appropriate VA examiner to determine whether the Veteran’s renal cancer with right nephrectomy is related to his active service. In correspondence dated October 30, 2020, the Veteran stated that he had received no treatment for his renal cancer outside of the VA. Since obtaining another opinion was predicated on review of additional private treatment records, the AOJ determined that another nexus opinion was unnecessary. The matter has returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900 (c). 38U.S.C. §7107 (a)(2). Entitlement to service connection for renal cancer with right nephrectomy, to include as due to exposure to herbicide agents is remanded. The Board cannot make a fully informed decision on this matter because the May 2020 VA medical opinion is inadequate. The Veteran contends that his renal cancer with right nephrectomy is related to service, to include as due to exposure to herbicide agents. The Agency of Original Jurisdiction (AOJ) obtained an addendum medical opinion in May 2020. The examiner noted that herbicide agent exposure was conceded but opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s provided the following rationale: “…renal (clear cell carcinoma) cancer is not a “presumptive disease” nor is the right nephrectomy for treatment on February 23, 2009, at the Kansas City, MO, VAMC. Complete review of the appropriate medical records failed to find any possible service-connected risk factor for the renal cancer. There was no interval complaint of care related to the right kidney from the RAD on July 31, 1988 until the diagnosis and treatment of the kidney cancer on Feb. 23, 2009. In summary, I opine that there is no causal of temporal nexus of exposures to be an etiological agent of the renal (clear cell carcinoma) cancer with right nephrectomy.” See May 2020 C&P Examination. As already noted herein, the Veteran's in-service herbicide agent exposure has been conceded. However, while certain cancers are among the listed disabilities under 38 C.F.R. § 3.309(e), renal cancer is not. Thus, the presumption afforded under this provision cannot provide a basis for a grant of service connection. Notwithstanding, consideration of whether a grant of service connection on a direct basis is warranted, is still necessary in this case. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The only rationale for the VA examiner’s negative opinion regarding a nexus between the Veteran’s renal cancer and his in-service exposure to herbicide agents was that renal cancer is not a presumptive decision under disease under 38 C.F.R. § 3.309(e). This is inadequate because there is no rationale provided for direct service connection. Therefore, a remand is necessary for another medical opinion to determine the nature and etiology of the Veteran’s renal cancer with nephrectomy. The matters are REMANDED for the following action: 1. Obtain all clinical VA records, which are not already in the claims file, pertaining to treatment of the Veteran for renal cancer. 2. Then, obtain a medical opinion to determine the nature and etiology of the Veteran’s renal cancer. Following a review of the record, the examiner should opine: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's renal cancer with nephrectomy is related to his military service, to include his conceded in-service exposure to herbicide. The clinician should be aware that the fact that renal cancer is not listed as one of the disabilities subject to presumptive service connection is not dispositive evidence weighing against the claim. As such, it should not be used as the sole basis in support of a negative nexus opinion. A complete rationale for all opinions expressed must be provided. The sole rationale for the opinion may not be that renal cancer is not a presumptive disease under 38 C.F.R. § 3.309(e). An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period should be allowed for response. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.