Citation Nr: 0906549	
Decision Date: 02/23/09    Archive Date: 03/03/09

DOCKET NO.  06-37 573	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, 
Oregon


THE ISSUE

Entitlement to service connection for kidney cancer.



REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' 
Affairs



ATTORNEY FOR THE BOARD

J. Henriquez, Counsel






INTRODUCTION

The Veteran had active service from August 1961 to July 1964.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Portland, Oregon.


FINDING OF FACT

There is no competent evidence that relates kidney cancer to 
service or any incident of service, including asbestos 
exposure or exposure to herbicides in service.


CONCLUSION OF LAW

Kidney cancer was not incurred in or aggravated by active 
service nor may it be presumed to have been incurred therein.  
38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 
3.159, 3.303, 3.307, 3.309 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), 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. 2008); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).  

Proper notice from VA must inform the claimant of any 
information and medical or lay evidence not of record (1) 
that is necessary to substantiate the claim; (2) that VA will 
seek to provide; (3) that the claimant is expected to 
provide; and (4) must ask the claimant to provide any 
evidence in her or his possession that pertains to the claim 
in accordance with 38 C.F.R. § 3.159(b)(1).  Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded.  Id. at 486.  

VCAA notice errors are presumed prejudicial unless VA shows 
that the error did not affect the essential fairness of the 
adjudication.  To overcome the burden of prejudicial error, 
VA must show (1) that any defect was cured by actual 
knowledge on the part of the claimant; (2) that a reasonable 
person could be expected to understand from the notice what 
was needed; or, (3) that a benefit could not have been 
awarded as a matter of law.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007).  

In the present case, the RO provided the appellant pre-
adjudication notice by a letter dated in September 2004.  
Although the notice provided did not address either the 
rating criteria or effective date provisions that are 
pertinent to the appellant's claim for service connection for 
kidney cancer, such error was harmless given that service 
connection is being denied for the claim, and hence no rating 
or effective date will be assigned with respect to this 
claimed condition.  Dingess v. Nicholson, 19 Vet. App. 473 
(2006).

The record also reflects that VA has made reasonable efforts 
to obtain or to assist in obtaining all relevant records 
pertinent to the issue on appeal.  Pertinent evidence 
associated with the claims file consists of the Veteran's 
service medical records and post-service medical records, 
including private and VA outpatient treatment records from 
the facilities identified by the Veteran.  The Veteran was 
afforded a VA examination in conjunction with his claim that 
his kidney cancer was due to asbestos exposure.  Solicitation 
of a medical opinion is not necessary with regard to his 
claim that kidney cancer was due to herbicide exposure 
because (as discussed in detail below) kidney cancer is not a 
disease associated with herbicide exposure.  See 38 C.F.R. 
§ 3.159(c)(4)(C); see also McLendon v. Nicholson, 20 Vet. 
App. 79 (2006).

VA has substantially complied with the notice and assistance 
requirements; and the Veteran is not prejudiced by a decision 
on the claims at this time.

Factual Background

The Veteran contends that he is entitled to service 
connection for kidney cancer as a result of exposure to 
asbestos while stationed in the Republic of Panama.  In 
particular, he alleges that he was exposed to asbestos while 
working as a driver and while performing some mechanical work 
on vehicles.  Alternatively, he maintains that he is entitled 
to service connection for kidney cancer as a result of 
herbicide (Agent Orange) exposure in Panama.  He believes 
that herbicides were used around a golf course where he was 
stationed as well as in jungle areas where he trained.

The Veteran's service personnel records confirm that he was a 
light truck driver and that he received a drivers badge.

The Veteran's service treatment records are negative for any 
kidney disease.

Post-service medical treatment records show that the Veteran 
underwent surgery for kidney cancer in January 2001.  

In a September 2005 notice of disagreement, the Veteran 
stated that he received a driver's badge during service which 
confirms that he was an expert driver and that he was 
assigned to the motor pool.  He emphasized that his duties 
exposed him to asbestos such as servicing of friction 
products like clutch facings and brake linings.  

The Veteran underwent a VA examination in July 2007.  The 
examiner noted the Veteran's history of working with vehicles 
during his service as well as his post-service history of 
working at a steel plant burning and machining steel for 32 
years.  The examiner stated that the relationship between 
asbestos and renal cell cancer was remote.  He stated that 
this has been found in persons who had a career in places 
where they were exposed to asbestos and had a relative risk 
of renal cell cancer estimated at 2.4 x normal.  On the other 
hand, he stated that the relative risk for those working in 
the iron and steel fabrication and cutting processes had a 
1.6 fold increase in probability of renal cell cancer.  The 
examiner emphasized that the Veteran spent most of his work 
life in this environment.  He also noted that smoking confers 
a 2.0 fold increase in renal cell cancer, and that the 
Veteran had quit smoking in 1972 after at least 10 years of 
exposure.    

The examiner further commented that for those persons who 
have been heavily exposed to inhaled asbestos, the most usual 
finding is calcification of the pleura.  This had not been 
discovered in the Veteran and it was unlikely that the 
Veteran had adequate exposure to cause such findings.  The 
examiner found that the Veteran's exposure to asbestos was 
collateral in nature, walking in and out of the repair shops 
and making sure work was done on the automobiles that he was 
going to be driving.  The Veteran did not actually 
participate in brake and clutch repair or in the actual 
blowing out of the dust created in those areas.  The examiner 
did concede that the Veteran had minor asbestos exposure just 
being around the workshops.  Lastly, the examiner noted that 
the pathology report from the kidney surgery made no note of 
any presence of asbestos fibers.  He stated that if the 
malignancy was caused by asbestos, fibers would be expected 
somewhere in the cancer, usually near the center, and if 
found, one could make the assumption that asbestos was the 
cause of the malignancy.

The examiner concluded that is was less likely than not that 
exposure to asbestos had any relationship with the renal cell 
cancer.

An April 2001 decision by the Social Security Administration 
(SSA) found the Veteran disabled since December 2000 due, in 
part, to kidney cancer.


Analysis

In general, service connection may be granted for disability 
resulting from disease or injury incurred in or aggravated 
during active military service.  38 U.S.C.A. § 1131.  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).

Where a veteran served for 90 days in active service, and 
malignant tumors develop to a degree of 10 percent or more 
within one year from the date of separation from service, 
such disease may be service connected even though there is no 
evidence of such disease in service. This presumption is 
rebuttable by affirmative evidence to the contrary.  38 
U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 
3.309 (2008).

As noted above, the Veteran contends that his kidney cancer 
is due to exposure to asbestos in service or to herbicide 
exposure. 

The Board notes that there is no specific statutory guidance 
with regard to asbestos-related claims, nor has the Secretary 
promulgated any regulations.  VA, however, has issued a 
circular on asbestos-related diseases that provides some 
guidelines for considering compensation claims based on 
exposure to asbestos.  Department of Veterans Benefits, 
Veterans' Administration, DVB Circular 21-88-8, Asbestos- 
Related Diseases (May 11, 1988) (DVB Circular).  The 
information and instructions from the DVB Circular are 
incorporated in the VA Adjudication Procedure Manual, M21-1 
(M21-1), Part VI, 7.21.

The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) 
are not substantive in nature, but relevant factors discussed 
by them must be considered by the Board in all decisions in 
order to fulfill the Board's obligation under 38 U.S.C.A § 
7104(d)(1) to provide an adequate statement of the reasons 
and bases for a decision.  See VAOPGCPREC 4-00; McGinty v. 
Brown, 4 Vet. App. 428 (1993).  The first three sentences of 
M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and 
must have been followed by the agency of original 
jurisdiction or the appeal must be remanded for this 
development.  VAOPGCPREC 4-00.  Additionally, while not 
discussed in VAOPGCPREC 4-00, it is likely that factors 
enumerated at M21-1, Part III, par. 5.13(b) should be 
considered by the Board.

The guidelines further provide that the latent period varies 
from 10-45 years or more between first exposure and 
development of disease. M21-1, part VI, para. 7.21(b)(1) and 
(2).  It is noted that an asbestos-related disease can 
develop from brief exposure to asbestos or as a bystander.  
The guidelines identify the nature of some asbestos-related 
diseases.  The most common disease is interstitial pulmonary 
fibrosis (asbestosis).  Asbestos fibers may also produce 
pleural effusions and fibrosis, pleural plaques, 
mesotheliomas of the pleura and peritoneum, lung cancer, and 
cancers of the gastrointestinal tract. M21-1, part VI, para. 
7.21(a)(1).  Finally, the guidelines provide that the 
clinical diagnosis of asbestosis requires a history of 
exposure and radiographic evidence of parenchymal lung 
disease.

VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) 
provides that inhalation of asbestos fibers can produce 
fibrosis and tumor, most commonly interstitial pulmonary 
fibrosis (asbestosis).  Asbestos fibers may also produce 
pleural effusion and fibrosis, pleural plaques, mesotheliomas 
of pleura and peritoneum, lung cancer, and cancers of the 
gastrointestinal tract.  Cancers of the larynx and pharynx, 
as well as the urogenital system (except the prostate) are 
also associated with asbestos exposure.  Thus, persons with 
asbestos exposure have increased incidence of bronchial, 
lung, pharyngolaryngeal, gastrointestinal and urogenital 
cancer.  M21-1, Part VI, para 7.21(a).

The applicable section of Manual M21-1 also notes that some 
of the major occupations involving exposure to asbestos 
include mining, milling, work in shipyards, carpentry and 
construction, manufacture and servicing of friction products 
such as clutch facings and brake linings, manufacture and 
installation of roofing and flooring materials, asbestos 
cement and pipe products, military equipment, etc.  High 
exposure to asbestos and a high prevalence of disease have 
been noted in insulation and shipyard workers, and this is 
significant considering that, during World War II, U.S. Navy 
veterans were exposed to chrysotile, amosite, and crocidolite 
that were used extensively in military ship construction. 
Furthermore, it was revealed that many of these shipyard 
workers had only recently come to medical attention because 
the latent period for asbestos-related diseases varies from 
10 to 45 or more years between first exposure and development 
of disease.  Also of significance is that the exposure to 
asbestos may be brief (as little as a month or two) or 
indirect (bystander disease).  Department of Veterans 
Affairs, Veteran's Benefits Administration, Manual M21-1, 
Part 6, Chapter 7, Subchapter IV, § 7.21(b).

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court 
found that provisions in former paragraph 7.68 (predecessor 
to paragraph 7.21) of VBA Manual M21-1, Part VI, did not 
create a presumption of exposure to asbestos.  Medical nexus 
evidence is required in claims for asbestos-related disease 
related to alleged asbestos exposure in service.  VAOPGCPREC 
4-00.

In short, with respect to claims involving asbestos exposure, 
VA must determine whether or not military records demonstrate 
evidence of asbestos exposure during service, develop whether 
or not there was pre-service and/or post-service occupational 
or other asbestos exposure, and determine whether there is a 
relationship between asbestos exposure and the claimed 
disease.  M21-1, Part VI, 7.21; DVB Circular 2-88-8, 
Asbestos-Related Diseases (May 11, 1988).

The medical evidence establishes that the Veteran underwent 
treatment for kidney cancer in January 2001.  The evidence 
also establishes that the Veteran had minor asbestos exposure 
during his active duty service.  The July 2007 VA examiner, 
however, provided a summary of his review of medical 
literature related to renal cell cancer epidemiology which 
showed remote findings regarding the relationship between 
renal cell carcinoma and asbestos exposure.  The examiner 
ultimately concluded that it was less likely than not that 
the Veteran's exposure to asbestos had any relationship to 
his kidney cancer.   The VA examiner based his conclusion on 
review of the claims folder and examination of the Veteran as 
well as a review of medical literature pertaining to the 
causes of renal cell cancer and his opinion is the only 
competent medical opinion of record.  Accordingly, the Board 
finds that service connection for kidney cancer on that basis 
of asbestos exposure is not warranted.

The Veteran has also offered the alternate theory that his 
kidney cancer is due to exposure to herbicides in service.  

A veteran who had active service in the Republic of Vietnam 
at any time from January 9, 1962, to May 7, 1975, will be 
presumed to have been exposed to an herbicide agent during 
that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. 
§ 3.307(a)(6)(iii).  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.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 
3.309(e).

Diseases to which the presumption applies are chloracne or 
other acneform diseases consistent with chloracne, Type 2 
diabetes (also known as Type II diabetes mellitus or adult- 
onset diabetes), Hodgkin's disease, chronic lymphocytic 
leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and 
subacute peripheral neuropathy, porphyria cutanea tarda, 
prostate cancer, respiratory cancers (cancer of the lung, 
bronchus, larynx, or trachea) and soft-tissue sarcomas (other 
than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or 
mesothelioma).  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).

The above-listed diseases shall have become manifest to a 
degree of 10 percent or more at any time after service, 
except that chloracne or other acneform disease consistent 
with chloracne, porphyria cutanea tarda, and acute and 
subacute peripheral neuropathy shall have become manifest to 
a degree of 10 percent or more within a year after the last 
date on which the veteran was exposed to an herbicide agent 
during active military, naval, or air service.  38 U.S.C.A. § 
1116; 38 C.F.R. §§ 3.307(a)(6)(ii).

The Board finds that the Veteran is not entitled to service 
connection on a presumptive basis because kidney cancer is 
not a disease associated with herbicide exposure under 38 
C.F.R. §§ 3.307, 3.309.  Thus, there is no need to discuss 
whether the Veteran was exposed to Agent Orange in service.

Additionally, the Veteran's service treatment records are 
negative for relevant complaints, symptoms, findings or 
diagnoses of kidney cancer.  Therefore, there is no 
indication that the Veteran's kidney cancer was incurred in 
or aggravated by service.  There are no medical opinions 
linking the Veteran's kidney cancer to service.  Service 
connection for kidney cancer on a direct basis is not 
warranted. The evidence of record provides that the onset of 
the Veteran's kidney cancer was several years after service.  
Therefore, the Veteran is not entitled to the presumption 
that kidney cancer was incurred in service because it did not 
manifest within one year from the Veteran's separation from 
service.

The only evidence supporting the Veteran's claims of service 
connection for kidney cancer is his written statements.  As a 
layperson, however, without the appropriate medical training 
and expertise, the Veteran simply is not competent to render 
a probative opinion on a medical matter, to include a 
diagnosis. See Bostain v. West, 11 Vet. App. 124, 127 (1998), 
citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

Therefore, after consideration of all the evidence, the Board 
concludes that the claim for service connection for kidney 
cancer, to include as secondary to asbestos exposure or to 
herbicide exposure must be denied.  In reaching this 
conclusion, the Board has considered the applicability of the 
benefit-of-the-doubt doctrine.  As the preponderance of the 
evidence is against the claim, that doctrine is not 
applicable in this appeal.






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ORDER

Service connection for kidney cancer is denied.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs