Citation Nr: 1311956	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  06-37 852	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for renal cell carcinoma of the left kidney, status-post nephrectomy, to include as due to exposure to Agent Orange, for the purpose of accrued benefits.


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1945 to June 1946, February 1947 to December 1949, December 1949 to April 1953, and from May 1955 to February 1971.  The Veteran died in May 2010, and his widow has been substituted as the claimant in this matter. 

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

In October 2008 the Board forwarded the case to a Veterans Health Administration (VHA) medical expert for an advisory opinion.  The requested opinion was received at the Board in December 2008 and has been associated with the claims file.

In March 2009 the Board found that the Veteran had filed a valid and timely notice of disagreement to a July 1984 rating decision which denied his initial claim for service connection for renal cell carcinoma, and therefore new and material evidence was not required for the current evaluation of the claim.  The case was remanded for additional development.

After the Veteran's death in May 2010, his widow submitted a June 2010 application for accrued benefits.  Under the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) which created 38 U.S.C.A. § 5121A (West Supp. 2012) (substitution in case of death of a claimant who dies on or after October 10, 2008), persons who would be eligible for accrued benefits may be substituted for a veteran who dies during the pendency of an appeal.  Evidence associated with the claims file, including the Veteran's May 2010 death certificate and May 2005 marriage certificate, reflect that the appellant is his surviving spouse.  As such, she is eligible to apply for accrued benefits and was properly substituted as claimant in place of the Veteran in July 2011.  38 U.S.C.A. § 5121A.

In June 2010 the appellant filed a claim for entitlement to Dependency and Indemnity Compensation/Death Pension benefits.  These issues have not yet been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over them and they are referred to the RO for appropriate and immediate action, to specifically include consideration of entitlement to service connection for the cause of the Veteran's death secondary to ischemic heart disease on a presumptive basis.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran's renal cell carcinoma of the left kidney, status-post nephrectomy, was due to an in-service disease or injury, to include exposure to Agent Orange.


CONCLUSION OF LAW

Renal cell carcinoma of the left kidney, status-post nephrectomy, was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred for accrued benefit purposes.  38 U.S.C.A.  §§ 1101, 1110, 1131, 5103, 5103A,  5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in June 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  In a May 2009 letter VA further notified the Veteran how disability ratings and effective dates are determined.  A September 2010 letter notified the current claimant of the requirements for establishing a claim for accrued benefits.  The case was most recently readjudicated in March 2012. 

VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim.  There is no evidence that additional records have yet to be requested.  The case was referred to a VA board certified oncologist to secure a medical opinion addressing the etiology of the Veteran's renal cancer.

In sum, there is no evidence of any VA error in notifying or assisting the claimant that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Relevant Laws and Regulations

The Board has reviewed all the evidence in the appellant's claims file.  Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d). 

VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, 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(a)(6)(iii). 

Certain diseases are deemed associated with herbicide exposure, under current VA law.  The list of those diseases does not include renal cancer.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309.  Indeed, the Secretary 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 72 Fed. Reg. 32,395 (2007).  

The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, the fact that a veteran did not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection for accrued purposes, as entitlement may alternatively be established on a direct basis. 

In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b). 

Analysis

The appellant claims that the Veteran's renal cell carcinoma, which led to a 1984 radical nephrectomy of the left kidney, was caused by in-service exposure to Agent Orange while he was stationed in Vietnam in 1964.  The Veteran submitted numerous written statements to VA stating that cancer did not run in his family and that a surgeon at the time of his nephrectomy had told him that he must have ingested Agent Orange, and that these were the reasons he believed his renal cell carcinoma to have been caused by Agent Orange.

The Veteran's service treatment records are silent for any complaints or treatment relating to renal cell carcinoma, cancer, or diseases of the kidney.  His records show that he was stationed in Vietnam in 1964.

The Veteran's VA treatment records show that in February 1984 he reported severe abdominal pain.  In March 1984 he was diagnosed with an asymptomatic renal mass with a vascular lesion suspicious of renal cell carcinoma on his left kidney.  That same month he underwent a left radical nephrectomy to remove the mass and the left kidney.  Subsequent biopsies of the mass showed Stage I renal cell carcinoma.

In September 2001 the Veteran reported having had impaired renal function in the past following his 1984 nephrectomy.  He was diagnosed with mild renal insufficiency secondary to a nephrectomy, aging, and hypertension.  The Veteran's subsequent VA treatment records show continued notation of his nephrectomy and monitoring for complications therefrom.

In October 2008 the Board requested a medical opinion from the Veterans Health Administration to address whether the Veteran's renal cell carcinoma was causally related to his Agent Orange exposure.  In December 2008 the Board received an opinion from a board certified oncologist who discussed the medical literature and research available on whether there is a possible connection between Agent Orange and renal cell carcinoma.  He reported that he was unable to find any evidence supporting a relationship between Agent Orange and that type of cancer, and ultimately concluded that it was very unlikely that the Veteran's renal cell carcinoma was related to his Agent Orange exposure.

In May 2010 the Veteran died of cardiopulmonary arrest and carcinoma of the bladder.  Chronic renal failure, hypertension, and residuals of an old stroke were listed as significant conditions contributing to death but not resulting in the underlying cause.

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to service connection for renal cell carcinoma of the left kidney on an accrued basis.  

While the Veteran had service in the Republic of Vietnam and is therefore presumed to have been exposed to Agent Orange, with regard to the question of entitlement to service connection for renal cancer on a presumptive basis, the presumption is not applicable because that disorder is not included on the list of diseases associated with herbicide exposure for purposes of the presumption.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  Therefore, renal cell carcinoma cannot be presumed to have resulted from that exposure.  Indeed, VA has specifically determined that renal cancer is not associated with exposure to herbicide agent for purposes of the presumption.  See Health Effects Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540 - 32,553 (Jun. 8, 2010).  This determination, which was based upon studies and tests conducted by the National Academy of Sciences, provides very strong evidence against presumptive service connection for renal cell carcinoma due to herbicide exposure.

Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee, 34 F.3d at 1044.  However, here, there is no competent evidence of record showing that renal cell carcinoma was caused by exposure to Agent Orange, or was otherwise related to service.  

The Board has reviewed the service treatment records.  They are silent for any complaints, treatment, or diagnosis of renal cell carcinoma or cancer during service.  The first showing of a diagnosis of renal cell carcinoma was in March 1984, i.e., approximately 13 years following the Veteran's retirement from active duty.  See Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000) (a lengthy lapse of time of a showing of a disease or injury is a factor for consideration in deciding a service connection claim).  The only allegation regarding a relationship between the diagnosis of renal cell carcinoma and service is the fact that he was exposed to Agent Orange while in Vietnam.  The appellant has made no allegation that the Veteran had kidney problems in service or even soon after retirement from active duty. 

The only evidence of record suggesting that the Veteran's renal cell carcinoma is related to his exposure to Agent Orange are the Veteran's own lay statements.  While the Veteran reported that a surgeon once told him that there was a connection between his renal cell carcinoma and Agent Orange, there is no evidence of this in the records of the nephrectomy which have been associated with the claims file.  In many written statements the Veteran argued that exposure to Agent Orange was the likely cause of his renal cancer.  But whether such exposure caused renal cell carcinoma is not a question subject to the opinion of a lay person.  The Board recognizes that the Veteran and the appellant as laypersons were/are competent to report on certain matters observed or within their personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  But the Veteran and the appellant, to the extent that they assert that Agent Orange caused the Veteran's renal cell carcinoma, are not competent to etiologically link renal cell carcinoma to herbicide exposure.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  The etiology of renal cancer is a complex question, as whether or not certain substances cause that disease is known to be the subject of medical research by experts, and is not a question that can be answered by observation by the senses.  Hence, their assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection.

For the foregoing reasons, the claim of entitlement to service connection for renal cell carcinoma of the left kidney, status-post nephrectomy, must be denied.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C.A. § 5107.



ORDER

Entitlement to service connection for renal cell carcinoma of the left kidney, status-post nephrectomy, to include as due to exposure to Agent Orange, for the purpose of accrued benefits, is denied.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs