Citation Nr: 0509244 Decision Date: 03/28/05 Archive Date: 04/07/05 DOCKET NO. 94-29 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for renal cell carcinoma, to include as residual to exposure to Agent Orange. 2. Entitlement to an effective date earlier than February 2000 for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Gary L. Beaver, Attorney-at- Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Ronald W. Scholz, Senior Counsel INTRODUCTION The veteran served on active duty from October 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for renal cell carcinoma, including as a residual of exposure to Agent Orange; and a February 2001 rating decision by the VA RO in St. Louis, Missouri, which granted service connection for bilateral hearing loss, rated as noncompensable (0 percent), from February 2000, the date of the claim. In March 1996, the veteran appeared before the undersigned Veterans Law Judge at a travel board hearing held at the RO in St. Louis, Missouri. In June 1996, the Board denied service connection for bilateral hearing loss and renal cell carcinoma. In March 1999, the Court of Appeals for Veterans Claims (CAVC) affirmed the Board's denial of service connection for bilateral hearing loss, vacated the Board's denial of service connection for renal cell carcinoma, and remanded that claim for further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases. The Court's judgment was entered in April 1999. In November 1999, the Board remanded the claim for service connection for renal cell carcinoma for further development. In December 2003, the Board remanded the claim for service connection for renal cell carcinoma for compliance with the Veterans Claims Assistance Act of 2000 (VCAA), and for further development. FINDINGS OF FACT 1. By virtue of his service in Viet Nam in 1971, the veteran is presumed to have been exposed to Agent Orange. 2. The competent medical evidence on the issue of whether the veteran's renal cell carcinoma is, or is not, caused by exposure to Agent Orange, is in equipoise. 3. A June 1996 Board decision denied service connection for bilateral hearing loss. That denial was affirmed by the CAVC in March 1999, and the Board decision is now final. 4. The veteran's application to reopen his claim for service connection for bilateral hearing loss was received on February 28, 2000. CONCLUSIONS OF LAW 1. Renal cell carcinoma, as a residual of Agent Orange exposure, was incurred in service. 38 U.S.C.A. §§ 1110, 1116, 5100, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2004). 2. An effective date earlier than February 28, 2000 for the grant of service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 5100, 5108, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.400, 20.1104 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). In an October 2004 letter, following two Board remands for further development, the RO notified the veteran of the information and evidence needed to substantiate and complete his claim for service connection for renal cell carcinoma, of what part of that evidence he was to provide, and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also advised the veteran to provide additional medical evidence or notify VA of any additional medical evidence he wanted VA to try to get for him. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). The original rating decision on appeal for service connection for renal cell carcinoma was in April 1994, more than six years prior to the enactment of the VCAA. Therefore, the veteran did not receive a VCAA notice prior to the initial rating decision denying his claim. Nonetheless, the Board finds that the lack of such a pre-decision notice is not prejudicial to the veteran. VCAA notice was provided by the RO prior to the transfer and certification of the veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The veteran's claim for service connection for bilateral hearing loss was reopened in February 2001 and service connection was granted, constituting a complete grant of the benefit sought, effective February 2000, the date of claim. The veteran's subsequent appeal of that decision for an earlier effective date of April 1994, when the original claim was filed, was denied in a June 2003 statement of the case (SOC) which explained that the April 1999 CAVC decision was not subject to revision as a matter of law. The Board further notes that the veteran is represented and has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. The VCAA places an enhanced duty on VA to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). In this case, the veteran's service medical records are on file and the RO has obtained all available post-service VA and private medical records identified by the veteran. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2004). Moreover, the veteran has been afforded a VA medical examination in January 2001 in connection with his claim for service connection for bilateral hearing loss, and in November 2000 in connection with his claim for service connection for renal cell carcinoma and, additionally, an Independent Medical Opinion (IME) was obtained in December 2001 in connection with his claim for service connection for renal cell carcinoma. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). Factual Background The veteran performed active service from October 1969 to December 1971, which included a tour in Viet Nam from January 1971 to December 1971. There are no service medical record entries showing any complaints of, treatment for, or diagnosis of, any kidney problems. In November 1986, at the age of 38, the veteran was diagnosed with a right hypernephroma and a right radical nephrectomy (removal of the right kidney) was performed. A pathology report contained a diagnosis of renal cell carcinoma. In January 1992, a letter was received from C.L. Judd, M.D. Dr. Judd noted the veteran's young age at the time the carcinoma appeared, and opined it was caused by exposure to Agent Orange. He stated that renal cell carcinoma was closely related to many soft tissue carcinomas. In February 1992, a letter was received from J. J. Finneran, M.D. Dr. Finneran noted that the veteran's tumor was a soft tissue tumor thought to come from embryonic rests, and was clearly related to sarcomas. Dr. Finneran opined that, because of the unique nature of the tumor, the veteran's age when it appeared, and the fact that the cancer was localized, one should look for an extrinsic cause. In January 1993, R. Scupham, M.D., a pathologist, submitted a microscopic examination report of the veteran's tumor. Dr. Scupham diagnosed renal cell carcinoma. A January 1993 private microscopic examination report of the veteran's kidney tumor was reviewed by Robert R. Schreck, M.D. He stated that the veteran had, by all clinical, roentgenologic, and pathological appearances, a standard hypernephroma clear cell carcinoma of the kidney: adenocarcinoma of kidney. Dr. Schreck related that there is no known association of hypernephroma with any chemical whatsoever; specifically, there is no known association of hypernephroma with Agent Orange. In March 1996, at a travel board hearing, the veteran testified regarding his probable exposure to Agent Orange while serving in Viet Nam, and cited to a number of scientific studies regarding the possible relationship between Agent Orange and renal cell carcinoma. In June 1996, the Board denied service connection for bilateral hearing loss and renal cell carcinoma. In March 1999, CAVC denied service connection for bilateral hearing loss and remanded the claim for renal cell carcinoma for further development. In April 1999, a letter was received from M.H. Adams, D.O., a pathologist certified in Anatomic Pathology and Laboratory Medicine, with a Master of Science degree in Air Pollution Toxicology. Dr. Adams noted that most renal cell carcinomas appear in the sixth and seventh decades of life and, in his 26 years of practice, he had never encountered a patient with renal cell carcinoma at such a young age as the veteran. Dr. Adams noted the veteran's exposure to Agent Orange while in Viet Nam and opined that the exposure "would be a likely cause of [the veteran's] renal cell carcinoma. In November 1999, the Board remanded the claim for renal cell carcinoma for further development. In February 2000, the veteran underwent a private audiometric examination by Hearing Unlimited that showed a mild hearing loss in both ears at frequencies above 2000 HZ. At a VA medical examination in October 2000, the veteran continued to contend that his renal cell carcinoma was actually a soft tissue sarcoma. As requested, a VA board-certified pathologist examined the two slides provided by the veteran. One slide gave evidence of a clear cell type of renal cell carcinoma involving the kidney. The second slide contained fatty tissue and a few blood vessels without evidence of tumor involvement. The VA pathologist stated that this tumor, renal cell carcinoma, was definitely different from soft tissue sarcoma because: 1) the tumor originated from epithelial cells and not from soft tissue cells; 2) soft tissue sarcoma does not form any tubular or glandular structures similar to this tumor; and 3) the tumor cells of sarcoma are not cuboidal to columnar, as was seen in this tumor. The VA pathologist stated that it was not possible with any known staining method to detect any Agent Orange in the slides. He further stated that, to the best of his knowledge, he was unaware of any scientific data linking Agent Orange and renal cell carcinoma. After reviewing the pathology report and claims file, including numerous treatise articles submitted by the veteran, a VA general examiner opined in October 2000 that the veteran's contention that his carcinoma was a soft tissue sarcoma did not appear valid. The VA general examiner further opined that the 1997 study from Volume 145, Number 12 of the American Journal of Epidemiology that related kidney cancer to a statistically significant finding of association with dioxin was in and of itself not sufficient to state an association between the veteran's kidney cancer and exposure to Agent Orange in Vietnam. The VA general examiner stated that the National Academy of Science periodically reviews all available literature regarding Agent Orange and that the overwhelming evidence and preponderance of studies shows that kidney cancer is not significantly associated with Agent Orange. The VA general examiner further stated that, even if the veteran's slides had been suitable for analysis for dioxin, which they were not, that the presence of dioxin would not have been an accurate indicator of whether the dioxin actually caused the cancer. It has been well established that each person's body throughout the United States has a varying degree of assimilation of dioxin and that, as a rule, most Americans have a background level of dioxin in their system. In December 2001, an IME was obtained from W.V. Walsh, M.D., an Assistant Professor of Medicine in the Division of Hematology Oncology at the University of Massachusetts Medical School. Dr. Walsh concluded that the veteran's tumor was a carcinoma, unrelated to sarcomas, that there was "little to no evidence" to support service connection for the veteran's renal cell carcinoma, and that there was "no substantial evidence" to support a link to Agent Orange exposure. In January 2001, the veteran received a VA medical examination for hearing loss. The examining audiologist concluded that it was as likely as not that the veteran's hearing loss began during active military service. In February 2001, the RO reopened the veteran's claim for service connection for bilateral hearing loss and granted service connection, rated as noncompensable (0 Percent), effective February 28, 2000, the date of the claim. In December 2003, the Board remanded the claim for renal cell carcinoma for VCAA notice and further development. In March 2004, an affidavit was received from H.B. Brauch, M.D., Section Head, Molecular Mechanisms of Origin and Treatment of Breast Cancer at the Dr. Margarete Fischer Bosch Institute of Clinical Pharmacology in Stuttgart, Germany. Dr. Brauch noted that the veteran developed clear cell renal carcinoma, a disease normally incurred by older patients, at the unusually young age of 38. Dr. Brauch performed a molecular analysis of the veteran's cancerous kidney tissue and a blood sample, and reached the following conclusions: 1) A complete molecular analysis was not possible because of the insufficient quantity and poor quality of the tissue; 2) the veteran did not have a hereditary predisposition to clear cell renal carcinoma; and 3) the veteran's renal cell carcinoma was not caused by heredity but, rather, by an environmental exposure. In March 2004, a letter was received from C.M. Anderson, M.D., a board-certified practicing academic medical oncologist at the University of Missouri-Ellis Fischel Cancer Center with a special interest and expertise in renal cell carcinoma. Dr. Anderson noted five indicators of a causal link between Agent Orange and the veteran's kidney cancer: 1) well-documented carcinogenic effect of exposure to dioxin (2,3,7,8-TCDD) in experimental and epidemiologic studies; 2) scientific and epidemiologic evidence of an association between Agent Orange exposure and kidney cancer, albeit a weak association; 3) the veteran's near certain significant exposure based on where he was in Vietnam at what time frame of the conflict; 4) the unusual young age at the time of the veteran's diagnosis; and 5) the lack of family history of kidney or any other type of cancers in members of his family. Dr. Anderson noted that the veteran had a smoking history, but which was much less than that of the typical kidney cancer patient, and opined that smoking may only have served as a co-inducer or co-factor in the genesis of his kidney cancer. It was Dr. Anderson's opinion that the veteran's kidney cancer was "more likely than not caused by Agent Orange exposure in Vietnam. Legal Criteria Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§1110 (West 2002). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2004). Service connection may be also 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) (2004). For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection under this section, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4- dichlorophenoxyacetic acid, and may be presumed to have exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). In Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. That is, the material in the claims file must be evaluated to determine whether there is at least evidentiary equipoise as to the question of whether any currently diagnosed condition is related to an illness or injury sustained or manifested by the veteran while on active duty. Id. at 1044; 38 U.S.C.A. §§ 1113(b), 1116. Except as provided in section 5108 of Title 38, when a claim is disallowed by the Board, the claim may not be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104 (West 2002). The effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004). Analysis Entitlement to service connection for renal cell carcinoma, including as a residual of Agent Orange exposure. The veteran contends that he was exposed to Agent Orange while serving in Viet Nam and that such exposure caused his renal cell carcinoma. In 1986 the veteran underwent a right radical nephrectomy and a pathologist performed a biopsy and diagnosed a cancer, renal cell carcinoma. The veteran served on active duty from October 1969 to December 1971, including a tour in Viet Nam which ended in December 1971. By virtue of his Viet Nam service, he is presumed to have been exposed to Agent Orange. Renal cell carcinoma is not one of the cancers entitled to presumptive service connection. The medical evidence, however, includes the opinion of several medical professionals that the veteran's renal cell carcinoma is a soft tissue tumor related to sarcomas, which are entitled to presumptive service connection. Those opinions were provided by physicians without specialized knowledge of oncology, and the Board is persuaded by an October 2000 report by a VA pathologist that there is no evidence of a soft tissue sarcoma, and the December 2001 IME report by an oncologist, that there is no support in the medical literature for a relationship between the veteran's carcinoma and sarcomas. Absent an identified cancer entitled to a statutory presumption of service connection, the veteran's claim must be decided on the basis of direct service connection. See Combee. Here the evidence is mixed. On the one hand, the record includes a December 2001 IME report by a well-qualified oncologist contains his opinion, supported by medical literature and a detailed rationale, that there is no substantial evidence to support a link between the veteran's renal cell carcinoma and Agent Orange exposure. On the other hand, a March 2004 affidavit submitted by a scientist recognized as an expert in the molecular analysis of cancer, contains his opinion that the veteran's renal cell carcinoma was not caused by heredity but, rather, by an environmental exposure. And, a March 2004 report by a well- qualified oncologist contains his opinion, supported by medical literature and a detailed rationale, that it is more likely than not that the veteran's renal cell carcinoma was caused by exposure to Agent Orange in Viet Nam. The Board finds that there is an approximate balance of positive and negative medical evidence on the issue of whether the veteran's renal cell carcinoma was caused by exposure to Agent Orange. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is to be given to the claimant. Accordingly, resolving the benefit of the doubt in this case in the veteran's favor, service connection for renal cell carcinoma is granted. 38 U.S.C.A. §§ 1110, 1116, 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303; Combee. Entitlement to an effective date earlier than February 2000 for service connection for bilateral hearing loss The veteran contends that the effective date for service connection for his noncompensable bilateral hearing loss should be the date of his original claim. The veteran's original claim, however, was denied by the RO in April 1994. The veteran appealed the denial to the Board, and the Board denied service connection in June 1996. The veteran appealed that denial to the CAVC, and the CAVC upheld the Board's decision in March 1999. The June 1996 Board decision is final, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104 (West 2002). The applicable law and regulations provide that where there has been a final decision denying a claim for service connection, any effective date set for disability compensation based upon a later grant of the benefit will be the date of receipt of the reopened claim. 38 C.F.R. § 3.400. The February 2001 RO rating decision granting service connection for bilateral hearing loss correctly applied the applicable law and regulation in assigning the effective date for the grant of this benefit on the date it received the veteran's application to reopen this claim February 28, 2000. Accordingly, the claim for an effective date earlier than February 28, 2000 must be denied. ORDER Service connection for renal cell carcinoma, to include as residual to exposure to Agent Orange, is granted. An effective date earlier than February 28, 2000 for service connection for bilateral hearing loss is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs