Citation Nr: 1227695 Decision Date: 08/10/12 Archive Date: 08/14/12 DOCKET NO. 08-09 713A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for right renal cell carcinoma, status-post laparoscopic hand-assisted right radical nephrectomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from April 1990 to July 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In September 2009, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2011). The case was subsequently remanded in March 2010 for RO consideration of newly submitted evidence. An addendum VHA opinion was requested in March 2012. The requested opinions have been provided and associated with the Veteran's VA claims folder. Although the most recent July 2012 VHA opinion has not yet been provided to the Veteran and his representative, as the Board is granting in full the benefit sought on appeal, this procedural error is deemed to be non-prejudicial to the Veteran. 38 C.F.R. § 20.903 (2011). The Board observes that the Veteran filed a notice of disagreement and substantive appeal with a March 2008 rating decision denying entitlement to service connection for hypertension. In a subsequent February 2011 rating decision, the RO granted entitlement to service connection hypertension. As such, the issue of whether service connection is warranted for this disability is moot. FINDING OF FACT The Veteran's hypertension contributed to the development of his right renal cell carcinoma. CONCLUSION OF LAW Right renal cell carcinoma is proximately due to or the result of his service-connected hypertension. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Service connection also may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Generally, in order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has asserted throughout his appeal that his renal cell carcinoma is the direct result of exposure to JP-5 jet fuel during service. His contentions were addressed in two VHA opinions obtained during the appeal period. The Board acknowledges the July 2012 VHA examiner's determination that it is unlikely that the Veteran's exposure to JP-5 jet fuel, or benzene contained therein, caused his renal cell carcinoma. Nevertheless, as will be explained in more detail below, the July 2012 VHA examiner opined that there is a positive relationship between the Veteran's service-connected hypertension and his right renal cell carcinoma. As such, although the Veteran's theory that his renal cell carcinoma was caused by exposure to JP-5 jet fuel is not necessarily supported by the evidence, entitlement to service connection for right renal cell carcinoma is still warranted. Further explanation and discussion of this direct service connection is not needed. The Board finds that the requirements for a grant of secondary service connection have been met with respect to his right renal cell carcinoma claim. As to Wallin element (1), the medical evidence of record demonstrates that the Veteran is currently diagnosed with right renal cell carcinoma, and underwent a laparoscopic hand-assisted right radical nephrectomy in May 2006. With respect to Wallin element (2), it is undisputed that the Veteran is currently service-connected for hypertension. There is also evidence that the Veteran's hypertension preexisted his renal cell carcinoma by over a decade. In this regard, and turning to crucial Wallin element (3), the most recent July 2012 VHA examiner, the Chief of Hematology and Oncology at the Durham VA Medical Center, reflected that it was at least as likely as not that the Veteran's service-connected hypertension contributed to the development of his renal cell carcinoma. While the Board recognizes that rationale for this opinion was not provided, there are no contradictory opinions of record. The Board finds that the July 2012 VHA examiner's opinion, persuasively reflects that the Veteran's right renal cell carcinoma is proximately due to or the result of his service-connected hypertension. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for secondary service connection for right renal cell carcinoma are met. 38 U.S.C.A. § 5107(b). ORDER Service connection for right renal cell carcinoma, status-post laparoscopic hand-assisted right radical nephrectomy is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs