Citation Nr: 0909791 Decision Date: 03/17/09 Archive Date: 03/26/09 DOCKET NO. 05-21 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for renal cancer, status post nephrectomy, left kidney, claimed secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence Griffin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2004 by the Department of Veteran Affairs (VA) Nashville, Tennessee Regional Office (RO). The Veteran's June 2005 substantive appeal indicates his desire to have a Board hearing on his claim at his local RO; however, in a May 2006 correspondence the Veteran withdrew his request for such a hearing. As the Veteran has complied with 38 U.S.C.A. § 20.704(e), the Board deems this withdrawal effective and will adjudicate the claim. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to Agent Orange in service. 2. The competent medical evidence as to whether the Veteran's renal cancer, status post nephrectomy, left kidney was related to exposure to Agent Orange in service is in equipoise. CONCLUSION OF LAW Renal cancer, status post nephrectomy, left kidney was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VA has a duty to provide a claimant notification of information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103(a); 5103A; 5107; 38 C.F.R. § 3.159. As a result of the Board's decision to grant the claim, any failure to notify and/or assist under the VCAA cannot be considered prejudicial to the Veteran. The Veteran has disagreed with the denial of his service connection claim by the RO, and maintains his exposure to herbicides in service justifies service connection for his renal cancer. The Veteran's DD-214 reflects his active duty service from July 1969 to April 1970 and his receipt of the Combat Infantry Badge, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Purple Heart. Additionally his DD- 214 reflects Vietnam service from February 1969 to March 1970. As such, it is presumed that he was indeed exposed to an herbicide agent, such as Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, affirmative evidence does not exist to rebut that presumption. Despite presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not applicable. Service connection due to herbicide exposure is only warranted for a specific list of diseases under 38 C.F.R. § 3.309(e) and renal cancer is not among those diseases. Accordingly, the Board is not permitted to grant the Veteran's service connection claim for renal cancer on a presumptive basis. It is acknowledged that where the evidence does not warrant presumptive service connection, the Veteran may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records are negative of any notation of treatment for a renal cancer. A March 1969 service treatment record documents the Veteran's treatment for right kidney pain and a January 1970 service treatment record details similar complaints by the Veteran, both diagnosing transitory conditions not renal cancer. The Veteran's April 1970 separation examination indicates the Veteran's urinalysis results were within normal limits, and no renal disorder is noted. The Veteran's first diagnosis of renal cancer is many years after his separation from service. An April 2004 VA treatment note indicates masses were discovered on the Veteran's left kidney. A May 2004 VA treatment note indicates such masses were determined to be cancerous and the Veteran's left kidney was removed. To support his contention that his renal cancer is related to his herbicide exposure, the Veteran has submitted an October 2004 private medical statement from Doctor J. Weiss. This statement recounted the history of the Veteran's renal cancer and opined that "Agent Orange could cause renal cell carcinoma." Further, Dr. Weiss concluded that dioxins cause cancer in multiple organs and therefore there may be a link between dioxin exposure and renal cancer. The Veteran has also presented the October 2004 private medical opinion of Doctor L. Christensen. Dr. Christensen also indicated herbicides, specifically Agent Orange, may cause renal cell carcinoma (RCC). Specifically, the doctor states "there might be a relationship between renal cell cancer and Agent Orange." In reaching this conclusion, Dr. Christensen relied on his experience treating Vietnam Veterans in Montana, which seemed to make it "more likely than not that a relationship existed," between renal cancer and Agent Orange exposure. Finally, the Veteran submitted the February 2008 statement of private Doctor M. Tepedino. Dr. Tepedino stated: Even though there has not been any clear documentation that exposure to Agent Orange is a direct cause of renal cell carcinoma; it has been shown to be a carcinogenic agent in a number of other cancers in humans. Therefore, it would seem plausible and reasonable to assume that Agent Orange exposure certainly could lead to renal cell carcinoma in a select individual. As each statement submitted by the Veteran indicated that there may be a link between herbicie exposure and renal cancer, the Board obtained a January 2009 Veterans Health Administration (VHA) opinion, pursuant to 38 C.F.R. § 3.159(c). After reviewing the claims folder, and the private medical opinions submitted by the Veteran, the VA medical specialist indicated "a clear cause-effect relationship has not been shown" between herbicide exposure and renal cancer. However, the examiner also stated that he and the other examiners agreed that Dioxin was carcinogenic and possibly could cause renal cancer. In reviewing the January 2009 VHA and other opinions of record, the Board first notes that the VHA examiner essentially concludes that "a clear cause-effect relationship" between renal cancer and Agent Orange exposure had not been shown. However, the Veteran is not required to show evidence of a "clear" cause-effect relationship. Indeed, the Veteran need only show that it is more likely than not that a relationship exists, and the examiner's subsequent statement that he and the other examiners "agree that Dioxin is carcinogenic and possibly could cause renal cell carcinoma," implies the existence of a causal, albeit "unclear," relationship. Moreover, in examining the other opinions of record, the Board is similarly struck by statements that the Board finds to be beyond mere speculation. For example, in examining the opinion of Dr. Weiss that Dioxin causes cancer in multiple organs, and therefore, by inference, RCC, he notes that the Veteran had no family history of RCC, and no evidence of a genetic transmitted disorder such as Von Hippel-Lindau disease that would explain the occurrence of RCC at his relatively young age. Thus, while Dr. Weiss does not go on to specifically state that exposure to Agent Orange is therefore the likely etiology, the Board finds that based on the examiner's above-noted factual predicate, he believes that there is a link between the Veteran's RCC and exposure to Agent Orange in service. Accordingly, although the Secretary has not determined that a sufficient basis exists to provide service connection for RCC on a presumptive basis based on exposure to Agent Orange, the Board finds that the opinions provided by the Veteran together with the VHA opinion are sufficient to place the issue of whether the Veteran's RCC was related to Agent Orange exposure in relative equipoise, and that service connection for renal cancer, status post nephrectomy, left kidney, claimed secondary to herbicide exposure, is therefore warranted. ORDER Service connection for renal cancer, status post nephrectomy, left kidney, claimed secondary to herbicide exposure is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs