Citation Nr: 1323859 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 11-07 921 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for renal cell carcinoma, status post left kidney removal, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2010 by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of service connection for an enlarged prostate has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to a chronic kidney disease in service or for many thereafter. 2. The Veteran served in the Republic of Vietnam during the Vietnam era, but renal cell carcinoma is not identified as a disease related to his presumed exposure to Agent Orange during service. 3. The currently demonstrated renal cell carcinoma, status post left kidney removal is not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's disability manifested by renal cell carcinoma, status post left kidney removal, is not due to disease or injury that was incurred in or aggravated by active service; nor is it due to his presumed exposure to herbicides; nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The July 2010 VCAA letter explained what evidence was necessary to substantiate the Veteran's claim of service connection for renal cell carcinoma. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the July 2010 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 VA treatment records. He did not identify any private treatment records. In addition, the Veteran underwent a VA examination in December 2010 to obtain medical evidence as to the nature and likely etiology of the claimed disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The December 2010 VA examination report provides a detailed review of the Veteran's claims folder including his lay statements and evidentiary submissions . The examination report is adequate for the purpose of adjudicating the Veteran's claim. For these reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements. The claim of service connection is ready to be considered on the merits. II. Service connection 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). 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). 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). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes mellitus (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). 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 applicable law and regulations, the Board concludes that service connection for renal cell carcinoma. III. Analysis The Veteran's service treatment records, to include his September 1970 discharge examination, do not reflect any complaints or findings referable to a chronic kidney disorder. The submitted VA treatment records reflect that, in November 2009, the Veteran presented with symptoms of mild abdominal pain. An April 2010 VA treatment record noted that he underwent a CT scan which showed a left renal mass. The Veteran subsequently underwent a left nephrectomy in June 2010 for renal cell carcinoma in the perinephric tissue. The Veteran was afforded a VA examination in December 2010. After reviewing the claims file and examining the Veteran, the VA examiner opined that the renal cell carcinoma and its related complications were less likely as not caused by or aggravated by his service in the Republic of Vietnam and his exposure to Agent Orange. The rationale for this opinion was that, after reviewing the research and relevant epidemiology information, renal cell carcinoma had not been placed on the list of conditions presumptively related to Agent Orange exposure. The VA examiner also noted that the copy of a previous decision of the Board submitted by the Veteran represented an isolated decision based on the lack of clarity of an expert rather than the scientific merits of the case for a causal relationship between renal cell carcinoma and the exposure to Agent Orange. The Veteran's DD Form 214 shows 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, as noted, the Veteran has not been diagnosed with a disease process that is recognized 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). Hence, presumptive service connection for renal cell carcinoma, based on the Veteran's presumed herbicide exposure, is not warranted. Notwithstanding the foregoing, the 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). 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, the only opinion of record as to the whether the Veteran's renal cell carcinoma, status post left nephrectomy, is related to his presumed exposure to Agent Orange during service is the negative opinion provided by the VA examiner in December 2010. 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). In this case, the Board finds the December 2010 VA examination opinion to be highly probative. In so finding, the Board notes that December 2010 VA opinion is supported by a medical rationale in that the examiner indicated that he had reviewed the relevant epidemiology information and the Veteran's medical records. Thus, the only medical opinion of record is against the Veteran's claim of service connection for renal cell carcinoma as due to his presumed herbicide exposure while on active duty. The Board acknowledges the Veteran's submission of a previous Board decision, wherein service connection for renal cell carcinoma as due to Agent Orange exposure was granted. The decision is based on a different facts and evidence than presented in this case. Moreover, a decision of the Board is nonprecedential in nature. See 38 C.F.R. § 20.1303. Therefore, the identified decision has no probative value with respect to the Veteran's claim. Moreover, the Board has considered the articles the Veteran submitted in support of his claim. The Agent Orange/Zumwalt report dated in May 1990 found that several cancers showed evidence suggesting an association with the exposure to Agent Orange, but for which statistically significant evidence was not available. The article entitled "Cancer and TCDD: The Mitochondrial Connection" made no reference to renal cell carcinoma. The Board has also considered the lay statements of the Veteran that his renal cell carcinoma is due to Agent Orange exposure in service. 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, the question of whether the Veteran's renal cell carcinoma is related to Agent Orange exposure is not the type the courts have found that lay testimony can answer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("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"). Moreover, the probative value of the Veteran's lay statements alone is outweighed by the well-reasoned opinion of the VA examiner. In a November 2010 Urology Note, a VA physician noted that the urology department had received a fax, which was written by the Veteran as "Dr. Filipkowski." It stated that "[the Veteran] ha[d] no other known risk factors that ha[d] precipitated his current condition. It [was his] opinion that it [was] more likely than not that [the Veteran's] condition of renal cell carcinoma [was] related to exposure to Agent Orange which (sic) serving in Vietnam from August 1968 to August 1969." The VA physician informed the Veteran that the statement could not have been signed by a physician because his 40 years of tobacco use was a known risk factor for renal cell carcinoma. As such, this statement is afforded very little probative weight. In regard to whether the claimed renal cell carcinoma is directly related to the Veteran's period of active service, the Veteran's service treatment records do not document any complaints, treatment or diagnosis of a chronic kidney disorder. In fact, his other treatment records first documented the onset of renal cell carcinoma in 2010, many years after the Veteran's period of active service. Therefore, the Board concludes that the Veteran's renal cell carcinoma was not manifested in service or within one year of his discharge. There is simply no evidence linking the actual onset of the Veteran's renal cell carcinoma to the time that he served on active duty. The VA examiner identified no such basis, and none of the VA treatment records of record reflect any such comment to that effect. Neither the Veteran nor his representative has presented or identified any evidence or medical opinion to support his claim. Accordingly, on this record, the claim of service connection must be denied. In reaching this conclusion, the Board finds that the benefit-of- the-doubt 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 Service connection for renal cell carcinoma, status post left kidney removal is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs