Citation Nr: 22057789 Decision Date: 10/14/22 Archive Date: 10/14/22 DOCKET NO. 18-24 227 DATE: October 14, 2022 REMANDED Entitlement to service connection for renal cell carcinoma, status post partial right nephrectomy is remanded. REASONS FOR REMAND The Veteran served in the Army from March 1968 to April 1971. His DD 214 shows Vietnam service from January 1969 to January 1970. The Board notes that in December 2021 the Veteran elected to withdraw his hearing request pursuant to 38 C.F.R. § 20.704(e). In his June 2022 Appellate Brief, the Veteran contends that exposure to herbicide and/or chemicals during service is related to his renal cell carcinoma, status post partial right nephrectomy. The Board finds that a VA examination is necessary in order to determine the merits of this claim. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. Renal cell carcinoma is not a disease listed under 38 C.F.R. § 3.309(e); thus, presumptive service connection is not warranted. Nevertheless, even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). There is no medical examination or opinion of record as to the likely etiology of the Veteran's renal cell carcinoma, status-post partial right nephrectomy. VA must provide or obtain a medical examination or opinion in order to satisfy VA's duty to assist in instances where there is each (1) competent evidence of a current disability, and (2) an in-service event, injury, or disease, and (3) evidence indicating a disability, or symptoms of a disability which are persistent or recurrent, "may be associated" with service, and (4) insufficient competent medical evidence of record on which to base a decision on the merits. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's private treatment records indicate that he was diagnosed with clear cell renal cell carcinoma. The Veteran subsequently underwent a right partial nephrectomy. See December 2017 Private Treatment Records, surgical pathology report. Due to his service in Vietnam, the Veteran's exposure to herbicides is conceded. The Veteran has credibly indicated exposure to chemicals during service may be related to his renal cell carcinoma, status post partial right nephrectomy, and there is insufficient medical evidence of record relating that exposure to the current diagnosis. VA's failure to obtain a medical examination and opinion constitutes a duty to assist error. Accordingly, the Board finds that VA has a duty to obtain a medical examination and opinion as to the likely etiology of the Veteran's renal cell carcinoma, status post partial right nephrectomy. This matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination of the Veteran's renal cell carcinoma, status post partial right nephrectomy. The entire claims file must be provided to the examiner. The examiner is asked to provide an opinion as to whether the Veteran's renal cell carcinoma, status post partial right nephrectomy, is related to his service, including due to conceded herbicide exposure. The examiner is reminded that although renal cell carcinoma, status post partial right nephrectomy, is not listed among the diseases presumed to be caused by herbicide agent exposure in 38 C.F.R. § 3.309(e), service connection may still be established on a direct basis. If the examiner determines renal cell carcinoma is not related to service the examiner should address what cause is more likely. The opinion rendered should be supported by an appropriate and adequate medical rationale. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Merriam, Jeffrey 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.