Citation Nr: 1311277 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-18 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for cancer of the right kidney, status post removal, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In October 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). The opinion, received in December 2010, has been received at the Board, and the Veteran and his representative have been provided a copy of this opinion. In January 2013, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). A review of the Veteran's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. While the Veteran served in Vietnam during the Vietnam era, and is, thus, presumed to have been exposed to herbicides during service, the Veteran has not been diagnosed with a disability recognized by VA as etiologically related to herbicide exposure. 2. Cancer of the right kidney was not shown in service or for many years thereafter, and the most probative opinion on the question of whether there exists a medical relationship between the Veteran's current cancer of the right kidney, status post removal, and service, to include any herbicide exposure therein, weighs against the claim. CONCLUSION OF LAW The criteria for service connection for cancer of the right kidney, status post removal, to include as due to exposure to herbicides are not met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a March 2007 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for cancer of the right kidney. Additionally, the March 2007 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. In addition, VA obtained a VHA opinion in December 2012 to determine the etiology of the claimed cancer of the right kidney. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for cancer of the right kidney, status post removal, is thus ready to be considered on the merits. II. Factual Background The Veteran's service treatment records, to include the Veteran's August 1971 discharge examination, do not reflect any complaint, findings, or diagnosis with respect to the kidney, to include cancer. Post-service private medical records reflect that the Veteran had a prior history of kidney lithotripsy in May 2001. He also had a prior history of abdominal pain and working diagnosis of polycystic kidney disease. A January 2006 ultrasound showed multiple cysts in both kidneys, a complex large right side cyst measuring 9.7 by 10 centimeters without solid component. The right kidney cyst underwent aspiration in February 2006 and it was negative for cancer at that time. A diagnosis of polycsystic kidney disease was noted in February 2006. In October 2006, the Veteran presented with symptoms of abdominal pain and there was concern that it was related to his renal cyst. He underwent CT scan, which showed large mid-upper pole of right kidney cyst with perinephrenic and subcapsular hematoma. The left kidney also showed multiple complex cysts and non-obstructing calculi. The Veteran subsequently underwent surgery and right nephrectomy in October 2006, which showed renal cell carcinoma, papillary type with extensive necrosis and hemorrhage confined to the cyst, without capsular extension and without thrombus in the renal vein. In a February 2008 statement, private physician Dr. P. noted that the Veteran had right renal cell carcinoma which was removed in October 2006. He noted that there was no history of previous cancer in the Veteran's family. He noted that there was empirical evidence that this could be due to Agent Orange exposure, since he was in Vietnam in an area that was hit with "Agent Orange deposits." As noted above, VA requested a VHA medical opinion in October 2012. In December 2012, a staff physician at the Kansas City VA Medical Center provided the requested opinion. He indicated that the reviewed the Veteran's medical records, and noted the Veteran's history of diagnosis of renal cancer in 2006. He observed that the Veteran's family history did not indicate hereditary history of kidney cancer nor of polycystic kidney disease. Social history reflected that the Veteran was a smoker and smoked approximately 1 pack per day, and his medical history included hypertension and hyperlipidemia. The physician noted that Veteran underwent surgery and right nephrectomy on October 2006 that showed renal cell carcinoma papillary type with extensive necrosis and hemorrhage confined to the cyst, without capsular extension and without thrombus in the renal vein. The pathology did not indicate the presence of soft tissue sarcoma. In addition, he indicated that he reviewed pertinent medical literature, and noted that the incidence of renal cell carcinoma is higher in Caucasians, African Americans, and American Indians than Asian Americas. The Veteran also had other risk factors for renal cell carcinoma including smoking, hypertension, and acquired cystic disease of the kidney or polycystic kidney disease. He determined that the Veteran's renal cell carcinoma was most likely sporadic since there was no family history. The physician opined that it is not likely that the Veteran's cancer of the right kidney had its onset in service or within one year of separation, since he was discharged in January 1972 and kidney cancer was not diagnosed until October 2006. Furthermore, he indicated that he reviewed the Veterans and Agent Orange 2010 update, which states that the available studies are of insufficient quality, consistenency or statistical power to permit a conclusion regarding the presence of absence of an association between Agent Orange and kidney cancer. In view of the other risk factors, the physician opined that it is not likely that the Veteran's kidney cancer, including removal, is related to service and herbicide exposure. Furthermore, he noted that the Veteran's kidney cancer did not contain soft tissue sarcoma, and therefore he did not see any relationship between the cancer and soft tissue sarcoma. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) . In addition to the requirements for establishing service connection on a direct basis, service connection for certain diseases, such as malignant tumors, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, 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 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600 -42608 (2002). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for cancer of the right kidney, status post removal. The Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era. Thus, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). However, the record reflects that the Veteran has not been diagnosed with a disability recognized by as associated with herbicide exposure (such as soft tissue sarcoma) and renal cancer is not among the disabilities recognized by VA as associated with herbicide exposure. See 38 C.F.R. § 3.309(e). In this regard the December 2012 VHA opinion provider specifically indicated that the Veteran's cancer of the right kidney did not involve soft tissue sarcoma. Hence, presumptive service connection for cancer of the right kidney, status post removal, based on the Veteran's presumed herbicide exposure, is not warranted. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In this regard, there are competing opinions as to whether the Veteran's cancer of the right kidney, status post removal, is related to in-service exposure to Agent Orange. While the Veteran's treating physician, Dr. P., indicated that such a relationship was possible, the VHA opinion provider found a relationship between the Veteran's kidney cancer and Agent Orange less likely than not. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the December 2012 VHA physician's opinion to be more probative. In so finding, the Board notes that December 2012 VHA physician's opinion is supported by medical rationale, while Dr. P. did not provide any rationale for the conclusion he reached. While both physicians indicated that they reviewed pertinent medical literature, the VHA physician specifically referenced medical studies and articles that supported his conclusions. In contrast, Dr. P. only noted that there was "empirical evidence" to support his opinion, but he did not point to any specific article or study. Moreover, though Dr. P. found that the Veteran's kidney cancer "could be" due to Agent Orange exposure, the speculative terminology used provides an insufficient basis for an award of service connection. See Winsett v. West, 11 Vet. App. 420, 424 (1998). See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert, 5 Vet. App. at 33 (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). As the opinion offered by Dr. P. employed the phrase "could be," the Board finds that it is speculative in nature, and thus, the Board assigns it little, if any, probative value. Thus, the most persuasive opinion on the question of whether there exists a medical nexus between the Veteran's cancer of the right kidney, status post removal, and in-service herbicide exposure weights against the claim. The Board acknowledges the Veteran's submission of a previous Board decision, wherein the Board awarded service connection for renal cell carcinoma as due to Agent Orange exposure. The decision is based on a different facts and evidence than in the present case. Moreover, Board decisions are nonprecedential in nature. See 38 C.F.R. § 20.1303. Therefore, this decision has no probative value with respect to the Veteran's claim. The Board has also considered the lay statements of the Veteran that his kidney cancer is due to Agent Orange exposure in service. Lay witnesses are competent to testify as to their observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, whether the Veteran's cancer of the right kidney is related to Agent Orange is of the type as to which the courts have found lay testimony is not competent. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In any event, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the specific, reasoned opinion of the December 2012 VHA physician. As regards whether service connection is warranted for cancer of the right kidney as directly related to service, other than herbicide exposure, the Veteran's service treatment records do not document any complaints, treatment, or diagnosis related to the kidney. In fact, his post-treatment records first document a diagnosis of cancer of the right kidney in 2006, which was over 30 years after his period of service. Therefore, the Board concludes that the Veteran's cancer of the right kidney did not manifest in service or within one year of his discharge, or for many years thereafter. Moreover, there is simply no evidence relating the Veteran's cancer of the right kidney, status post removal, directly to service. The VHA examiner found no such relationship, none of the private or VA medical records treatment records of record reflect any such comment to that effect, and neither the Veteran nor his representative has presented or identified any such existing evidence or medical opinion. In fact, the Veteran has not asserted that the disorder is otherwise directly related to his military service outside of herbicide exposure. Therefore, the Board finds that the Veteran's cancer of the right kidney is not causally or etiologically related to his military service. Based on the foregoing, the Veteran's cancer of the right kidney, status post removal, did not manifest in service or for many years thereafter and is not causally or etiologically related to his military service, including herbicide exposure. Accordingly, the claim for service connection for this disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for cancer of the right kidney, status post removal, to include as due to exposure to herbicides, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs