Citation Nr: 0315405 Decision Date: 07/10/03 Archive Date: 07/17/03 DOCKET NO. 02-05 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for renal cell carcinoma, claimed as a result of exposure to herbicide agents. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from February 1965 to February 1968. Service in Vietnam is indicated by the evidence of record. This matter has come before the Board of Veterans' Appeals (the Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (the RO). In March 2003, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2002). After the opinion was received at the Board, in March 2003, the representative was provided a copy and 60 days to submit any additional evidence or argument in response to the opinion. The representative submitted a written statement in June 2003. The case is now ready for appellate review. FINDING OF FACT Competent medical evidence shows that the veteran's renal cell carcinoma is related to his exposure to herbicides in Vietnam. CONCLUSION OF LAW Renal cell carcinoma was incurred during active service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303(d) (2002). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks entitlement to service connection for renal cell carcinoma. In essence, he contends that his diagnosed renal cell carcinoma is related to exposure to herbicides in Vietnam. He has submitted a medical opinion in support of his claim. Initial matter - VA's duty to notify/assist The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)]. This law redefines the obligations of VA with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the veteran's claim is not final and remains pending. The provisions of the VCAA and the implementing regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issues on appeal has proceeded in accordance with the provisions of the law and regulations. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C. § 5103; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) The record reflects that the veteran has been informed of the requirements with respect to the issue currently on appeal in the April 2002 Statement of the Case, which reference the VCAA and its implementing regulations in great detail. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Among other things, the implementing regulations provide that VA will provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. See 38 U.S.C. § 5103A. The evidence on file includes service medical records, private treatment records, a medical opinion from a private physician and a medical opinion from the VHA. There is no indication that any existing pertinent medical evidence has not been associated with the veteran's VA claims folder, and the veteran and his representative have pointed to none. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his claim. The representative has submitted a brief on the veteran's behalf. In short, following a thorough review of the record, the Board is satisfied that the VA has met its duty to assist the veteran in the development of all facts pertinent to his claims. Under such circumstances, no further assistance to the veteran is required in order to comply with the VA's duty to notify and to assist mandated by the VCAA and its implementing regulations. Pertinent Law and Regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection - herbicide exposure A veteran who had active service in the Republic of Vietnam during the Vietnam War period will be presumed to have been exposed to an herbicide agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). When such a veteran develops a disorder listed in 38 C.F.R. § 3.309(e), which disorders have been shown to be caused by exposure to Agent Orange, to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. See 38 C.F.R. §§ 3.307, 3.309(e) (2002). In addition, the United States Court of Appeals for the Federal Circuit has held that the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record on appeal. 38 U.S.C.A. § 7104 (West 1991 and Supp. 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2002). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir. 1997) and cases cited therein [holding that the Board has the duty to assess the credibility and weight to be given to the evidence]. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Factual background The veteran's DD form 214 reflects that he had service in the Republic of Vietnam during the Vietnam era. Service medical records are negative for any indication of renal disease or cancer. The initial diagnosis of renal cell carcinoma was made based on a pathological study in April 1999. The veteran underwent a radical left nephrectomy. In a statement dated in August 2001, Dr. E.C. opined that there was a high degree of certainty that the veteran's renal cell carcinoma was related to his exposure to Agent Orange in Vietnam. Dr. C. noted that careful perusal of the veteran's family history showed no familial tendency or incidence of the disease. In March 2003, the Board requested an opinion from the VHA. Later that month, Dr. S.M. responded that she "cannot state that it is likely or at least as likely as not that renal cell carcinoma is the result of exposure to herbicides used in Vietnam." Dr. M. indicated that her opinion was based on the Institute of Medicine's (IOM) conclusion that there was inadequate or insufficient evidence to determine whether an association exists between exposure to herbicides used in Vietnam and renal cancer. Analysis The veteran contends that he has renal cell carcinoma as a result of exposure to Agent Orange in Vietnam during the Vietnam Era. As discussed above, in general, in order for service connection to be granted three elements must be satisfied: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to element (1), it is undisputed that the veteran has current disability from renal cell carcinoma. As for element (2), the veteran served in Vietnam, so exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116(f). With respect to element (3), medical nexus, although the veteran had service in the Republic of Vietnam during part of his active duty service, his disability from renal cell carcinoma is not presumptively service connected. The Secretary of VA has formally announced that a presumption of service connection based on exposure to herbicide exposure in Vietnam is not warranted for "any . . . condition for which the Secretary has not specifically determined a presumption of service connection is warranted." See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996). Renal cell carcinoma is not listed among the presumptive diseases. Nonetheless, the veteran may still prevail in his claim regarding renal cell carcinoma if he can present competent medical evidence showing a nexus between herbicide exposure during service and his development of the kidney disorder. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the record contains an August 2001 medical opinion from Dr. E.C. wherein he opined that there was a high degree of certainty that the veteran's renal cell carcinoma was related to his exposure to Agent Orange in Vietnam. In support of his opinion, Dr. C. noted that the veteran had no familial history of the disease. The Board further observes that the record does not contain any evidence of any basis for the veteran's renal cell carcinoma other than exposure top herbicides in Vietnam. In her March 2003 VHA opinion, Dr. S.M. indicated that she was unable to state that it was likely or at least as likely as not that the veteran's renal cell carcinoma was related to Agent Orange exposure in Vietnam. Based on review of all the evidence of record and resolving all doubt in the veteran's favor, the Board finds that service connection is warranted for renal cell carcinoma as a result of Agent Orange exposure. In so deciding, the Board notes that in her March 2003 opinion, Dr. M stated that based on conclusions reached by the IOM she was unable to state that it was likely or at least as likely that the renal cell carcinoma was related to Agent Orange exposure in service. The Board notes, however, that Dr. M. did not affirmatively state that the renal cell carcinoma was not likely related to such exposure, but merely that she was unable to state. In the Board's view, such distinction is important. In this regard, the Board notes that in his August 2001 opinion, Dr. C. stated that there was a high degree of certainty that the renal cell carcinoma was related to Agent Orange exposure. Therefore, resolving all reasonable doubt in the veteran's favor, the Board finds that service connection for renal cell carcinoma as a result of Agent Orange exposure is warranted. ORDER Entitlement to service connection for renal cell carcinoma is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.