Citation Nr: 1314916 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-01 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of renal cell carcinoma, to include status post right kidney nephrectomy and transplant, claimed as secondary to in-service exposure to chemicals. 2. Entitlement to service connection for congestive heart failure, status post heart transplant, to include as secondary to in-service exposure to chemicals and to a service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran had active military service from September 1967 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the appeal, in May 2011, the Veteran appeared and testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of this hearing has been associated with the claims file. In September 2011, the Board requested a medical opinion from an expert at VA's Veterans Health Administration (VHA). An opinion was provided in December 2011. In February 2012, the Veteran submitted additional evidence and asked that it be considered by the agency of original jurisdiction (AOJ) in the first instance. In April 2012, the Board remanded the Veteran's kidney and heart claims. After completion of the requested development, the AOJ readjudicated these issues, and, upon their denial, issued a Supplemental Statement of the Case (SSOC). FINDINGS OF FACT 1. The Veteran was exposed to numerous chemicals as a result of military service as a Metals Processing Specialist. 2. Resolving reasonable doubt in favor of the Veteran, his residuals of renal cell carcinoma, to include status post right kidney nephrectomy and transplant, are secondary to his exposure to chemicals while in service. 3. Resolving reasonable doubt in favor of the Veteran, his hypertension was aggravated by his now service-connected residuals of renal cell carcinoma, to include status post right kidney nephrectomy and transplant. 4. Resolving reasonable doubt in favor of the Veteran, his status post heart transplant was caused by his now service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of renal cell carcinoma, status post right kidney nephrectomy and transplant, have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for hypertension, as secondary to the service-connected residuals of renal cell carcinoma, status post right kidney nephrectomy and transplant, have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for status post heart transplant, as secondary to the now service-connected hypertension, have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (the Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board has considered these provisions. However, in light of the complete grant of the benefits sought on appeal, the Board finds that no further discussion of VA's duties to notify and to assist the Veteran in his appeal is necessary. II. Background The Veteran seeks service connection for renal cell carcinoma, status post nephrectomy and status post kidney transplant, as well as for congestive heart failure, status post heart transplant. He claims that renal cell carcinoma and heart disease are the result of his daily exposure to chemicals in service when he worked as a Metals Processing Specialist. He states that he performed chemical plating and acid cleaning of aircraft parts with daily exposure to a number of chemicals including cadmium cyanide, chromium, copper, nickel and zinc electroplating solutions and ammonium nitrate used to remove cadmium plating. His service treatment records confirm his likely exposure to chemicals. For instance, his military occupational specialty (MOS) was initially that of an administrative specialist, but in 1972 he was retrained, and his MOS was changed to a Metals Processing Specialist. He was assigned to the Welding and Electroplating Shop, Williams Air Force Base, Arizona, from October 27, 1972, to January 22, 1976. Thereafter, he transferred to Chanute Air Force Base, Illinois where he served as an instructor in the Metals Processing Specialist Course until his discharge from service in April 1977. Documentation (AF Form 332, dated August 6, 1994) was provided to support the Veteran's contention that the shop he worked in was confined and inadequately ventilated. His personnel file contains performance reports (AF Form 910) from August 1972 through December 1974, which demonstrate that, while stationed at Williams Air Force Base, Arizona, his duties included performing welding on aircraft jet engine components and aerospace ground equipment using heliarc, arc, oxygen and acetylene welding process, as well as performing, instructing and supervising heat treating and electroplating processes. Performance reviews from Chanute Air Force Base, Illinois, from December 1974 to June 1976, demonstrate that the Veteran was an instructor in the Metals Processing Specialist Course. Also, in support of his claims, he has provided multiple lists of the chemicals/toxins that he claims that he was exposed to, including cadmium, calcium cyanide plating, zinc sulfate, nickel sulphate, copper, chromium, lead, silver, cyanide case hardening, trichloroethylene, welding rod gasses and fumes. Service records confirm that he participated in, or taught courses involving, metal processing, welding, and electroplating. Hand-written notes prepared during the training describe work doing cadmium plating. He has also submitted documents regarding environmental contamination at the Williams Air Force Base, Arizona. For instance, a Superfund Pollution Locator describes rinse water from the plating shop that was contaminated with chromium cadmium and copper. The Veteran's service treatment records, however, do not show any complaints of or diagnoses related to the Veteran's kidneys or findings of a heart condition. They do, however, show complaints of chest pain with radiation to the neck and left arm which were thought to be related to costochondritis. Post-service treatment records also show similar complaints that were thought to be either costochondritis or myositis. Post-service treatment records further demonstrate that the Veteran presented to the emergency room of a private hospital in January 1993 with complaints of severe right flank pain and gross hematuria, which was initially thought to be due to a large kidney stone. However, he was later diagnosed with renal cell carcinoma with questionable metastasis to the lower left chest. On January 15, 1993, he underwent a right radical nephrectomy with regional retroperitoneal lymphadenectomy and enterolysis. The pathology report is of record and reflects an ultimate finding of renal cell carcinoma of the right kidney with no tumors of the adrenal gland and lymph nodes. Also, during this hospitalization, the Veteran had the onset of intermittent hypertensive. He underwent consultation for this on January 12, 1993. It was noted that the Veteran gave no history of having had hypertension prior to admission, although he did give a family history on his mother's side. He had several blood pressures since admission with maximum values of 195/101. He was treated with anti-hypertensive medications that were somewhat effective in controlling his blood pressures. Physical examination demonstrated blood pressure was 141/106 but the heart had regular rhythm, S1 and S2 were normal, and there was no gallop or murmur. Chest x-ray was negative. Electrocardiogram (EKG) showed sinus rhythm, nonspecific ST/T changes, and otherwise was unremarkable. The assessment was right renal mass, probably renal cell carcinoma, as well as elevated blood pressure suspected to be related to volume expansion and pain as he had no history of previous hypertension. A June 2008 treatment note from Seton Heart Specialists indicates that he had a heart transplant in October 1998 due to hypertensive dilated cardiomyopathy. At a VA heart examination in November 2009, the Veteran reported that his heart failure was diagnosed in September 1997 and that he was initially treated with medications. However, the condition worsened. He said that he was hospitalized from May 1998 until his heart transplant in October 1998. He reported that the heart transplant was very successful without complications. The November 2009 VA examiner's diagnosis was status post heart transplant for hypertensive dilated cardiomyopathy. The examiner reviewed the Veteran's claims file and considered his contentions, but opined that there was no evidence to support his contention that he had any type of heart disease, including congestive heart failure, hypertension, or ischemia during his military service. Rather, the examiner noted that the Veteran's chronic chest pain was felt to be due to chest wall myositis or costochondritis. He further noted that, up until 1995, there is evidence that the Veteran had negative chest X-rays without signs of congestive heart failure or an enlarged heart. Thus, the examiner opined that it is not likely that the current heart condition with status post heart transplant is related to, or caused by, the Veteran's military service and that it is not likely that the chest pains in service were early signs of heart disease. Rather, the examiner stated that it seems to be indicated by the record that the Veteran's heart condition was a result of hypertension that may have been exacerbated or caused by the loss of his kidney in 1993 due to cancer. Numerous treatise articles have been submitted during the course of the appeal. Among them are a Department of Labor, Occupational Safety and Health Administration (OSHA) final rules determining that occupational exposure to cadmium resulted in a significant risk of developing lung cancer and serious kidney damage. Another describes the carcinogenic effect of exposure to trichloroethylene (TCE) and the subsequent development of kidney cancer. A third article concerns a retrospective study of end-stage renal disease in aircraft workers exposed to TCE and other hydrocarbons. It concludes that there was a two fold increased risk of end-stage renal cancer among exposed workers. Finally, fact sheets from the American Cancer Society and the Mayo Clinic generally describe studies which suggest that workplace exposure to chemicals and substances, such as cadmium and TCE, increases the risk for renal cell cancer. In December 2011, two VHA examiners, one, a general surgeon, and the other, an urological surgeon, reviewed the file and opined that it was not likely that renal cell carcinoma was the result of exposure to chemicals in service. They noted that the generally accepted risk factors for renal cell carcinoma were tobacco exposure, obesity, and hypertension. They reported that the exposure to cadmium is not particularly convincing especially in a patient that denies tobacco use. No further rationale was provided. Finally, in July 2012, a VA internal medicine specialist provided an opinion stating that the claimed heart disability was less likely than not related to service. The examiner noted that he had reviewed the Veteran's claims file and found that the heart transplant was due to viral myocarditis, cyclosporine toxicity, and dilated cardiomyopathy due to hypertension. The examiner did not find evidence of heart disease due to chemical exposure in service. Moreover, the examiner reviewed the medical literature but did not find evidence linking chemical exposure to dilated cardiomyopathy. III. Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, including arteriosclerosis, hypertension, and cardiovascular-renal disease service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A. Kidney Here, the Board has carefully considered the Veteran's lay testimony as well as the other relevant evidence of record. After considering such, the Board finds that the evidence is essentially in equipoise as to the relationship between current residuals of renal cell carcinoma and the Veteran's active duty. That is, there is evidence both for and against the claim. First, the Board finds that the Veteran was likely exposed to chemicals, as asserted. His contention is consistent with the service treatment records which document his service as a Metals Processing Specialist. Moreover, the evidence provided supports his allegation that he worked in poorly ventilated workspace and was likely exposed to various chemicals on a daily basis. The list of chemicals to which he was exposed is not documented in the service treatment records. However, the Board accepts his testimony that his work involved exposure to cadmium, calcium cyanide plating, zinc sulfate, nickel sulphate, copper, chromium, lead, silver, cyanide case hardening, trichloroethylene, welding rod gasses and fumes as asserted. In addition, the Veteran has presented compelling treatise evidence that establishes the likely relationship between exposure to certain chemicals and the subsequent development of renal cell carcinoma. With respect to the treatise evidence, the Court has held that medical treatise information, in general, is too uncertain to show etiology because "[a]cceptance of this evidence as sufficient to establish the plausibility of causality would be predicated on simply the instinctive inference of a lay person, rather than upon an adjudicative determination (made by a lay person) as to the credibility and weight of expert evidence." Sacks v. West, 11 Vet. App. 314, 317 (1998). However, the Court qualified this holding by stating that medical articles or treatises "can provide important support when combined with an opinion of a medical professional." Id. Furthermore, the Court held that a medical article or treatise, standing alone, may provide sufficient evidence of a causal connection when it "discusses generic relationships with a degree of certainty" so that the causal connection is "based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. The Court of Appeals for the Federal Circuit has held that an appellant may invoke treatise evidence to show nexus, and "in an appropriate case" the appellant will not need to seek a supporting medical opinion. Hensley v. West, 212 F.3d 1255, 1265 (Fed.Cir.2000). However, the Court did not state that treatise evidence must be indiscriminately accepted in the absence of a supporting medical opinion. Id. Here, as noted, some of the internet treatise articles are too general in nature to establish the required nexus evidence for the Veteran's service-connected renal cell carcinoma. However, several of the submissions contain full scientific studies that clearly document the relationship between chemical exposure and the onset of renal cell cancers. In particular, the Board cannot ignore the study that looked at personnel on Air Force bases whose jobs involved exposure to chemicals. The Veteran's exposure is supported in the record, and he has testified, quite credibly, that he was exposed on a daily basis. Such a high rate of exposure as well as the subsequent onset of renal cell carcinoma make the treatise evidence relevant and directly supports the claim for service connection. In this regard, the Board must also acknowledge the negative evidence against the claim. First, renal cell cancer was not noted in service or for several years thereafter. In addition, the level of exposure to hazardous chemicals was not documented in the service treatment records. Moreover, the December 2011 VHA examiners provided a negative opinion against the claim. With respect to this opinion, however, it is not particularly well reasoned. While the opinion notes the most likely risk factors for renal cell carcinoma, it does not address the most likely etiology of the Veteran's renal cell carcinoma. For instance, it contains no discussion of the Veteran's risk factors for developing renal cancer. In addition, the report fails to acknowledge the Veteran's years of exposure to various chemicals. Moreover, its statement that "cadmium is not particularly convincing especially in a patient that denies tobacco use" is not explained. For these reasons, the Board affords the VHA opinion minimum probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning). The benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 provides that "[t]he Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." Evidence is in "approximate balance" when the evidence in favor of, and opposing, a veteran's claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The evidence in this case is at least in equipoise with regard to the cause of the Veteran's residuals of renal cell carcinoma. Accordingly, service connection for residuals of renal cell carcinoma, status post kidney nephrectomy and transplant, is warranted. B. Heart, To Include Hypertension The Board also finds that the evidence of record is in relative equipoise as to the Veteran's claim for service connection for a cardiovascular disorder, to include hypertension. As previously discussed herein, the examiner who conducted the November 2009 VA examination provided an addendum opinion in July 2012. According to the report of the November 2009 VA examination, the examiner believed that the Veteran's hypertension may have been caused or aggravated by the loss of his kidney in 1993 due to cancer. Indeed, additional medical evidence of record indicates that the Veteran's hypertension was first noted in 1993, when he underwent kidney surgery. Thus, the Board will resolve reasonable doubt in favor of the Veteran and grant service connection for hypertension as secondary to the now service-connected residuals of renal cell carcinoma, status post right kidney nephrectomy and transplant (on the basis of aggravation). Furthermore, according to the November 2009 VA examiner's July 2012 supplemental opinion, the Veteran's heart transplant was due to viral myocarditis, cyclosporine toxicity, and dilated cardiomyopathy due to hypertension. As competent evidence of record reflects that the Veteran's now service-connected hypertension caused the problems that resulted in his need for a heart transplant, the Board will resolve any reasonable doubt in favor of the Veteran and grant service connection for residuals of a heart transplant as secondary to the now service-connected hypertension. ORDER Service connection for residuals of renal cell carcinoma, status post right kidney nephrectomy and transplant, is granted. Service connection for hypertension, as secondary to the service-connected residuals of renal cell carcinoma, status post right kidney nephrectomy and transplant, is granted. Service connection for status post heart transplant, as secondary to the service-connected hypertension, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs