Citation Nr: A25003003 Decision Date: 01/14/25 Archive Date: 01/14/25 DOCKET NO. 230612-353795 DATE: January 14, 2025 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for left adrenal gland cancer is remanded. Entitlement to a rating in excess of 30 percent for the Veteran's service-connected right kidney cancer status post right kidney total nephrectomy is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from May 1988 to September 1990 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2023 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In June 2023, the Veteran submitted a Decision Review Request: Board Appeal, (Notice of Disagreement), VA Form 10182, and elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2023 rating decision. See 38 C.F.R. § 20.301. The Board notes that the Veteran submitted a statement with his Notice of Disagreement, some portions of which may be interpreted as evidence. However, as this statement is duplicative of pre-decisional information the Veteran provided, it does not render his Board docket selection unclear. In general, if evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in this decision. See 38 C.F.R. § 20.300. However, as a remand of these matters is required, any such evidence will be considered by the AOJ on remand. Claims for service connection for prostate cancer and left adrenal gland cancer have been added to this appeal pursuant to the holding in Bailey v. Wilkie, 33 Vet. App. 188 (2021). The Board must remand an appeal to the AOJ for correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A if the error occurred prior to the date of the AOJ decision on appeal. See 38 C.F.R. § 20.802. Although the Board sincerely regrets the delay, these claims must be remanded for correction of the following errors. 1. Entitlement to service connection for prostate cancer is remanded. 2. Entitlement to service connection for left adrenal gland cancer is remanded. The Veteran is service connected for kidney cancer and is seeking a higher rating for that disability. The pre-decisional evidence of record reflects diagnoses of prostate cancer and adrenal gland cancer and suggests a possible relationship between those conditions and the Veteran's kidney cancer. See, e.g., March 2015 abdominal CT; June 2015 Cardiology Consult; July 2022 VA Past History note; see also Bailey, 33 Vet. App. 188. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Board finds the low threshold of the McLendon standard was met prior to issuance of the rating decision on appeal, such that the AOJ should have sought an examination and opinion addressing whether the Veteran's diagnosed prostate and adrenal gland cancers are secondary to his service-connected kidney cancer. This pre-decisional duty to assist error must be corrected on remand. 3. Entitlement to a rating in excess of 30 percent for the Veteran's service-connected right kidney cancer status post right kidney total nephrectomy is remanded. Any decision regarding the Veteran's service connection claims being remanded herein could significantly impact the claim for entitlement to an increased rating for the Veteran's service-connected right kidney cancer. Therefore, adjudication of the increased rating claim must be deferred until the inextricably intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, a January 2023 VA examination report did not include all of the findings necessary to rate this disability under the applicable rating criteria; namely, it did not include glomerular filtration rate (GFR) results, and it stated laboratory studies were not performed in conjunction with the examination. Notably, it appears an eGFR was obtained in February 2023. See May 5, 2023 C&P Exam. However, the significance of those test results is unclear. Although it is possible results were not included in the report because the examiner concluded the Veteran's remaining kidney was not affected by nephritis, infection, or other pathology, this is not clear from the evidence of record. The AOJ should have sought clarification via an additional examination, and this pre-decisional error must also be corrected on remand. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his prostate and left adrenal gland conditions, claimed as prostate and left adrenal gland cancers. After reviewing the claims file, performing a physical examination of the Veteran, and conducting any indicated tests, the examiner is asked to address the following: Does the Veteran have prostate and/or left adrenal gland cancer that is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) (1) due to or the result of, or (2) aggravated by his service-connected kidney disability? Please explain why or why not, specifically addressing whether the evidence of record establishes that the Veteran developed prostate cancer and/or adrenal gland cancer as a result of kidney cancer that metastasized. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected kidney disability. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be conducted and the results reported in detail. If the examiner determines laboratory studies (to include GFR) are not warranted, he or she should explain why that is so. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale, 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.